Citation Nr: 21027836 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-20 121 DATE: May 6, 2021 ORDER Entitlement to service connection for tinnitus is dismissed. Entitlement to service connection for a right ankle disability is dismissed. Entitlement to an initial rating in excess of 30 percent prior to December 11, 2020, and 100 percent thereafter for a heart disability is denied. Entitlement to an initial rating in excess of 10 percent prior to March 28, 2018, and 20 percent thereafter for diabetes mellitus II (diabetes) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran was awarded service connection for tinnitus and his right ankle disability. 2. Prior to December 11, 2020, the Veteran's heart disability was not manifest by more than one episode of congestive heart failure in the past year, a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or a left ventricular dysfunction with an ejection fraction of 30 to 50 percent and from December 11, 2020, it is in receipt of the highest available rating. 3. Prior to March 28, 2018, the Veteran's diabetes was not manifested by requiring one or more daily injection of insulin and restricted diet or oral hypoglycemic agents and restricted diet and from March 28, 2018, it did not require one or more daily injections of insulin, restricted diet, and regulation of activities. 4. The Veteran's service-connected disabilities render him unemployable. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal as to entitlement to service connection for tinnitus and a right ankle disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55, 20.204. 2. The criteria for entitlement to a rating in excess of 30 percent prior to December 11, 2020, and 100 percent thereafter for a heart disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005. 3. The criteria for a rating in excess of 10 percent prior to March 28, 2018, and 20 percent thereafter for diabetes are not met. 38 U.S.C. § § 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.120, DC 7913. 4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1961 to May 1964. The Veteran had a hearing in November 2019 before a Veterans Law Judge who is no longer with the Board of Veterans' Appeal (Board). A transcript is associated with the file. In March 2021, the Veteran was sent a letter offering him a new hearing. In April 2021, the Veteran declined a new hearing. In March 2020 the Board, among other things, remanded the above issues for additional development. In this regard, the post-Remand development substantially complied with the Remand by obtaining VA examinations adequate to rate the Veteran's disabilities under all applicable rating criteria as well as obtaining and associated with the record all identified and available outstanding medical records. See 38 U.S.C. § 5103A(b), (d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). Therefore, the Board finds that further delay by remanding the appeal to undertake additional development is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board notes the Veteran has been in receipt of a 100 percent disability rating since December 11, 2020, and Special Monthly Compensation (SMC). Dismissed Claims Regarding the claims of service connection for tinnitus and a right ankle disability, that were previously remand, the claim was granted by the RO in a December 2020 rating decision. As the full benefit sought was granted i.e., an award of service connection further appellate review is moot, and the claims are no longer on appeal. See 38 U.S.C. § 7105; 38 C.F.R. § 19.55, 20.204; AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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 evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Heart Disability Claim The Veteran's heart disability is currently rated as 30 percent disabling prior to December 11, 2020, and 100 percent thereafter under DC 7005. See 38 C.F.R. § 4.104. The Veteran contends his heart disability is worse than indicated by his assigned rating. Under DC 7005, the criteria under which the Veteran's heart disability is rated, a 30 percent rating contemplates a workload of greater than 5 METs, but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or evidence of cardiac hypertrophy or dilatation on EKG, ECG, or X-ray examination. A 60 percent rating contemplates more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs, but not greater than 5 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. Finally, a 100 percent rating contemplates documented coronary artery disease resulting in chronic congestive heart failure, or; workload of 3 METs or less, resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005. The Board notes the Veteran is in receipt of the highest available rating from December 11, 2020, and therefore, will only consider whether a higher rating is warranted prior to that date. In his November 2019 hearing, the Veteran reported taking medication, that he didn't feel good, tired easily, and sat often. The Veteran had an examination for his heart in November 2017. The examiner noted the Veteran had not had a heart attack, congestive heart failure, or arrhythmia. The Veteran's ejection fraction was 59 percent with METs level based on an exercise stress test of nine with no ischemia. The Veteran had an examination for his heart disability in December 2020. The Veteran said that it was severe enough to affect his routine activities at home and work. The Veteran reported shortness of breath climbing stairs, doing activities around the house, and that it affected his sleep. The examiner noted the Veteran took aspirin for his condition but that the Veteran had not have any hospitalizations for his heart other than for non-surgical or surgical procedures. The Veteran had an interview-based METs test which showed the Veteran's METs level was 1-3, leading to dyspnea, fatigue, angina, and dizziness. The Board has also considered the Veteran's medical records, but these records do not show that prior to December 11, 2020, his heart disability was severe enough to warrant a higher, 60 percent rating. For example, in May 2009, the Veteran had an exercise stress test and achieved 9 METS and his ejection fraction was 56 percent. And at another point was found to be 74 percent. In March 2013, his ejection fraction 61.9 percent. In May 2017, it was 59.1 percent and in September 2019, the Veteran's ejection fraction was 54.5 percent. The Board also finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Davidson, supra. While the Veteran's heart disability clearly is a serious condition, the objective evidence does not show that it was severe enough to warrant a 60 or 100 percent rating prior to December 11, 2020, as the evidence does not show the Veteran had more than one episode of acute congestive heart failure during this time or workload of greater than 3 METs, but not greater than 5 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions); Owens, supra. Therefore, the Board finds that the claims for increased ratings for the Veteran's heart disability is denied at all times during the appeal. See 38 C.F.R. § 4.104, DC 7005; Fenderson, supra; Hart, supra. Diabetes Claim The Veteran contends his diabetes is more severe than his 10 percent rating prior to March 28, 2018, and 20 percent thereafter. The Veteran's diabetes mellitus is rated under DC 7913. 38 C.F.R. § 4.120. Pursuant to DC 7913, a 10 percent rating is warranted for diabetes manageable by restricted diet only. A 20 percent rating is warranted where the diabetes requires insulin and a restricted diet or hypoglycemic agents and restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes requiring 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 for diabetes requiring more than one daily injection of insulin, restricted diet, and regulation of 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. Within the criteria for a 100 percent rating, "Regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. The Veteran said in his November 2019 hearing that his diabetes had gotten worse and his doctors increased the amount of medication he was taking. The Veteran said he was on a restricted diet and was restricted in his activities such as walking and climbing ladders. The Veteran also said he couldn't climb stairs and that he couldn't go to the second floor, so he slept on the first floor. The Veteran reported no hospitalizations in the past 12 months due to his diabetes. The Veteran had an examination for his diabetes in November 2017. The examiner noted the Veteran's diabetes was managed by restricted diet and did not require insulin and saw his diabetic care provider for ketoacidosis or hypoglycemia less than two times per month. The Veteran had zero hospitalizations over the past 12 months but had unintentional weight loss due to his diabetes. The Veteran had an examination for his diabetes in December 2020. The examiner stated the Veteran's diabetes was managed by restricted diet and prescribed oral hypoglycemic agents. However, the Veteran was not required to use insulin. The Veteran sought diabetic care less than two times per month and had zero hospitalizations due to his condition in the past 12 months. The Veteran also did not have unintentional weight loss. The Board also notes that the treatment records document his treatment for diabetes. However, the board finds that nothing in these records show his adverse symptomatology to be worse than what was reported at the above VA examinations and the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin, supra; Davidson, supra. The Veteran's diabetes clearly affects the Veteran's daily life. However, after reviewing the Veteran's record, including his examinations, his medical treatment records, and his statements, the Board finds that at least a higher, 20 percent rating, is not warranted prior to March 28, 2018 as the evidence does not show the Veteran's diabetes required insulin and a restricted diet or hypoglycemic agents and restricted diet. See Colvin, supra; Owens, supra. From March 28, 2018, the Board also finds that the evidence does not show treatment of the Veteran's diabetes required insulin, restricted diet, and regulation of activities. The Veteran reported being restricted in his activities, diet, and that his doctors had increased his medication level, but did not indicate that he was required to take insulin. Indeed, an October 2020 medical treatment record indicated the Veteran's diabetes was stable. Once again, the Board finds that nothing in the treatment records show his adverse symptomatology to be worse than what was reported at the above VA examination and the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin, supra; Davidson, supra. Therefore, the claim will be denied. See Colvin, supra; Owens, supra. Conclusion Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Regarding the claims above, the Board once again acknowledges the Veteran's statements that his claimed disabilities bother him, causing him pain and discomfort, and that he believes they are both worse than indicated by his current disability ratings. The Board also recognizes the Veteran continues to seek medical treatment for these conditions. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical conditions. See Jandreau, supra. The Board has considered the Veteran's statements and has weighed them against the medical evidence as discussed above but finds the medical evidence of record to be most probative. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). The Board also finds the examinations of record as discussed to be adequate in that the examiners reviewed the Veteran's files, saw the Veteran in person, took into account the Veteran's statements and symptoms, and performed all necessary testing. It is important for the Veteran to understand that the medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his disabilities are worse than indicated by his current disability ratings. While the Veteran's heart disability and diabetes clearly bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings. If his heart disability and diabetes did not cause him problems, there would be no basis for the compensable ratings; the only question is the degree. Indeed, the Board finds the combination of these two disabilities, along with his other service-connected disabilities serious enough to warrant a TDIU, as discussed below. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). TDIU Claim The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total 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 disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran's combined disability rating is now at 100 percent and was at 90 percent as of January 9, 2017, with his prostate cancer rated as 60 percent disabling. In addition to his prostate cancer, the Veteran is also service connected for the following disabilities: A heart disability, rated as 30 percent prior to December 11, 2020 and 100 percent thereafter, posttraumatic stress disorder (PTSD), rated as 50 percent disabling, A right ankle disability, rated as 20 percent disabling, Diabetes, rated as 10 percent prior to March 28, 2018 and 20 percent thereafter, Tinnitus, rated as 10 percent disabling, and Erectile dysfunction, rated as noncompensable. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated as 40 percent or higher and he has a combined rating of 70 percent or higher. The next question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the Veteran last worked in November 1995. The Veteran had previous work experience in the police force and worked from 1968 to 1995 as a state trooper. (See October 2020 Application for Increased Benefits Based on Unemployability.) The Veteran has a high school education. (See November 2017 PTSD examination.) The Veteran's record shows that his PTSD leads to problems with speech and disturbances of motivation and mood. The Veteran himself stated he had to retire from being a state trooper due ot his PTSD symptoms. (See March 2018 correspondence.) In May 2020, one of the Veteran's doctors submitted a statement, saying the Veteran's mental health continued to have a great impact on his employability. The examiner reported the Veteran was unable to tolerate the ordinary stress of work, had irritability, and was argumentative. The examiner opined the Veteran was unemployable. A December 2020 PTSD examiner said the Veteran's mental health leads to occupational impairment with deficiencies in most areas. The Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood. A December 2020 diabetes examiner stated the Veteran's diabetes impacted his ability to work in that he would lose two to four weeks of work in a 12 month period. The examiner said the Veteran had trouble standing or walking for long periods of time or without assistance. The Veteran also had balance problems and was at risk of falling. The Veteran also had troubles performing work tasks. Additionally, a December 2020 erectile dysfunction examiner reported the Veteran's ED affected his ability to work because it caused anxiety and depression which led to sleep problems. In December 2020, another examiner said the Veteran's right ankle impacts ability to work, causing limping, instability, trouble walking, severe pain with running. And a December 2020 heart examiner stated the Veteran's heart disability impacted his ability to work in that he would miss two to four weeks of work in a 12 month periods and would have impaired concentration or short-term memory, severe enough to affect his routine behaviors at work. As to the Veteran's being able to work performing jobs that require sedentary employment and non-sedentary employment, including his past employment in law enforcement, the Board finds that the medical records show that the problems caused by his service-connected heart disability, PTSD, right ankle disability, diabetes, and tinnitus adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and interact effectively with co-workers and/or customers, and carry out the tasks required by employment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected heart disability, PTSD, right ankle disability, diabetes, and tinnitus would make it dangerous for the Veteran and his co-workers for him to work in most non-sedentary employments. Id. Similarly, the Board finds that that the PTSD would make it very difficult to learn the new skills needed to work in most sedentary employments and interact with his co-workers as well as any customers, and carry out the duties required by such employment for the first time. Id. Given the above, the Board finds that the Veteran's service-connected disabilities prevent him from securing or following a "substantially gainful" occupation given his prior vocational history, work experience, and the impact his service-connected heart disability, PTSD, right ankle disability, diabetes, and tinnitus have on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment in law enforcement, because of the problems they would cause in any work environment. Further development of this issue is simply not warranted in light of the history of this case. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.