Citation Nr: 21028405 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-21 834 DATE: May 11, 2021 ORDER Entitlement to a rating greater than 60 percent for type II diabetes mellitus, for the purposes of accrued benefits is granted. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) for the purposes of accrued benefits is dismissed. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDINGS OF FACT 1. Throughout the entire period on appeal, the preponderance of the evidence establishes that the Veteran had poorly controlled diabetes mellitus requiring insulin twice a day, with episodes of hypoglycemia reactions, which resulted in hospitalization, and had symptoms of chronic diarrhea and peripheral neuropathy. 2. Throughout the entire period on appeal, the Veteran has been granted a 100 percent schedular rating for diabetes mellitus. CONCLUSIONS OF LAW 1. Throughout the entire period on appeal the criteria for a 100 percent disability rating for diabetes mellitus, for the purposes of accrued benefits, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913. 2. The grant of a 100 percent rating for diabetes mellitus renders moot the appeal for a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from May 1962 to August 1962 and served in the United States Air Force Reserves from August 1962 to May 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in August 2008. This matter was previously before the Board in February 2014, which found that the Appellant was the surviving spouse of the Veteran for VA benefits purposes, and the Veteran had claims pending for VA benefits at the time of his death, which included a claim for entitlement to an increased rating for his diabetes mellitus and a claim of entitlement to a TDIU. In February 2014, the Board remanded the issues of entitlement to service connection for the cause of the death of the Veteran, entitlement to an increased rating for his diabetes mellitus, and entitlement to a TDIU to the AOJ for further development. In November 2019, the AOJ increased the Veteran's rating to 60 percent for diabetes mellitus for the purposes of accrued benefits effective November 20, 2007. Because the increase in evaluation of the Veteran's diabetes mellitus does not represent the maximum evaluation available for the condition, the Veteran's claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In December 2017, the Appellant's representative requested that the matter be expedited due to the age of the Appellant, who is currently over 75. Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown, including advanced age, defined as 75 years or more. See February 2008 VA 21-534 Application for Dependency and Indemnity Compensation. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). The Board finds there is sufficient evidence to show that the Appellant is over the age of 75; thus, advancement on the docket is warranted. As such, the Board grants the representative's request and this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 C.F.R. § 7107(a)(2). Increased Rating 1. Entitlement to a rating greater than 60 percent for diabetes mellitus, for the purposes of accrued benefits An October 1982 rating decision granted service connection for type II diabetes mellitus with an evaluation of 10 percent effective June 1, 1982. In November 2007 a claim for entitlement to an increased rating for diabetes mellitus was filed. After the Veteran's death in January 2008; the Veteran's spouse filed a claim of entitlement to accrued benefits in April 2008. An August 2008 rating decision denied entitlement to accrued benefits. The Veteran filed a notice of disagreement in July 2009. A November 2019 rating decision granted a 60 percent rating effective November 20, 2007, for the purposes of accrued benefits for diabetes mellitus. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. In a claim for a higher original rating after an initial award of service connection, all the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). Although the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1. Resolving all reasonable doubt in favor of the Veteran after a review of the evidence, for reasons set forth below, the Board finds that a 100 percent rating is warranted for the Veteran's service-connected diabetes mellitus for the entire period on appeal, for the purposes of accrued benefits. The Veteran's diabetes is rated under 38 C.F.R. § 4.119, Diagnostic Code 7913, which provides ratings for diabetes mellitus. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. See 38 C.F.R. § 4.27. The Board notes that the Veteran was last afforded a VA examination in July 1982 for his service-connected diabetes. Thus the Board has relied on the Veteran's treatment records to determine the severity of the Veteran's diabetes mellitus during the period on appeal. The Veteran's treatment records reflect that the Veteran was prescribed insulin twice a day and continued to have elevated glucose levels. See June 2007 treatment record. The Veteran's treatment records also reflect that the Veteran had episodes of hypoglycemic reactions due to uncontrolled diabetes mellitus, which required hospitalization. See May 2006, August 2006, February 2007, June 2007 treatment records. The Veteran's treatment provider recommended that the Veteran receive treatment through a diabetic care provider to attempt to manage the Veteran's diabetes mellitus. See June 2006 and August 2006 treatment records. The Veteran's treatment records reflect that the Veteran had chronic diarrhea and incontinence due to his service-connected diabetes mellitus. See August 2006 February 2007, and July 2007 treatment records. Pursuant to Diagnostic Code 7913, a 60 percent rating is assignable for diabetes mellitus 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. 38 C.F.R. § 4.119. A 100 percent rating is assignable for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). Note (1) following Diagnostic Code 7913 provides that compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Resolving all reasonable doubt in favor of the Appellant, the Veteran's diabetes mellitus warrants a rating of 100 percent, for the entire period on appeal based upon the Veteran's treatment records. The Board finds that the Veteran's diabetes mellitus more closely approximated the criteria required for a 100 percent rating throughout the period on appeal. 38 C.F.R. § 4.7. The preponderance of the evidence establishes that the Veteran had poorly controlled diabetes mellitus, which included episodes of hypoglycemia reactions requiring hospitalization. In addition, the severity of the Veteran's symptoms required regular visits with a diabetic care provider to attempt to manage the Veteran's diabetes mellitus. Finally, the Board finds that the Veteran also had compensable chronic diarrhea and peripheral neuropathy due to his service-connected diabetes mellitus. Thus, the Board finds, that based upon a preponderance of the evidence, the Veteran's diabetes mellitus warrants a 100 percent rating throughout the period on appeal. In reaching this decision, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a TDIU for the purposes of accrued benefits In November 2007 a claim for entitlement to an increased rating for diabetes mellitus was filed. After the Veteran's death in September 2008; the Veteran's spouse file a claim of entitlement to accrued benefits in April 2008. After a review of the evidence and for reasons set forth below, the Board finds that an appeal of entitlement to a TDIU is moot throughout the period on appeal. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of TDIU, disabilities of common etiology will be considered a single disability. Throughout the period on appeal, the Veteran had a combined disability rating of 100 percent for his service-connected disabilities (100 percent rating for diabetes mellitus from November 20, 2007; 100 percent rating for bilateral diabetic retinopathy with ischemic maculopathy from November 20, 2007). VA will grant a TDIU when the service connected disabilities are rated less than total, but the Veteran is precluded, by reason of his service connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. As a TDIU can only be awarded in cases where the schedular rating is less than total, there is no basis for awarding a TDIU. 38 C.F.R. § 4.16(a). However, the assignment of a 100 percent combined schedular rating does not necessarily render the issue of TDIU moot. Special monthly compensation (SMC) at the housebound rate is payable if a Veteran has a single service-connected disability rated as 100 percent and has an additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A TDIU rating based on a single disability is permitted to satisfy the statutory requirement of a 100 percent rating. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The Board is cognizant of the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008), in which the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. Here, the Veteran's service-connected diabetes mellitus is rated at a 100 percent schedular disability rating, and the Veteran's only other service-connected disability, diabetic retinopathy with ischemic maculopathy, was rated at 100 percent, which does not meet the statutory requirements to form the basis for an award of special monthly compensation. Thus, to also award a separate TDIU rating in addition to the schedular 100 percent rating based on the Veteran's service-connected diabetes mellitus would result in duplicate counting of the disability. For these reasons, the award of the total schedular rating effectively creates a situation where there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. In such an instance, dismissal is appropriate. See 38 U.S.C. § 7105(d). REASONS FOR REMAND 1. Entitlement to service connection for the cause of the Veteran's death is remanded. The Appellants attorney asserts that diabetes mellitus is a progressive and debilitating disease and affects the body's vital organs. The attorney asserts that high blood glucose level can cause damage to all parts of the cardiovascular system; and hypoglycemia, frequently asymptomatic and prolonged may increase the risk of arrhythmias in patients with type II diabetes and high cardiovascular risk. See May 2020 third party correspondence. The Veteran died in January 2008. The death certificate reflects that the immediate cause of death was cardiac arrhythmias. Other significant condition contributing to death but not resulting in the underlying cause of death was listed as dementia and clostridium difficile (c. diff) colitis. The Veteran's service-connected disabilities include diabetes mellitus, diabetic retinopathy, and ischemic maculopathy. The Board notes that the Veteran's service-connected diabetes mellitus is rated at 100 percent disabling and his service-connected bilateral diabetic retinopathy with ischemic maculopathy is rated at 100 percent disability. The death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is one which contributed substantially or materially to cause of death, or aided or lent assistance to the production of death, or resulted in debilitating effects and general impairment of health to the extent that it rendered the Veteran materially less capable of resisting the effects of his cardiac arrhythmias, dentia, and c. diff colitis, or were of such severity as to have a material influence in accelerating death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(a)-(c). Thus, the Veteran's service-connected diabetes mellitus and bilateral diabetic retinopathy with ischemic maculopathy may be assumed to be debilitating in this case. Following, the February 2014 Board remand, VA obtained an opinion in December 2016 and in October 2019. The October 2019 VA examiner noted that they agreed with the December 2016 medical opinion, and noted that the evidence provided in April 2019, provided no additional evidence to overturn the previous opinion rendered. The December 2016 and October 2019 VA opinions did not provide sufficient analysis to determine whether the Veteran death was related to service or his service connected disabilities. The December 2016 VA examiner did not discuss the nature and etiology of cardiac arrhythmia's or dementia. The examiner noted that it was pure speculation as to the cause of the Veteran's cardiac arrhythmia or whether diabetes mellitus and related service-connected illnesses aggravated or contributed to his death. The examiner did not provide a sufficient explanation regarding why an opinion could not be provided without resorting to speculation, which renders the examination inadequate. Regarding the Veteran's c. diff colitis, the December 2016 and October 2019 VA examiners opined that the symptoms of the Veteran's gastritis were temporary, and gastritis was an inflammation of the stomach lining and was unrelated to his clostridium difficile colitis in 2008. The examiners noted that the major cause of clostridium difficile colitis was treatment with antibiotics and noted that the Veteran developed c. diff colitis after undergoing a course of antibiotics for pneumonia. The December 2016 and October 2019 VA examiners did not discuss whether the Veteran's symptoms of diabetes, which included chronic diarrhea from at least December 2006, contributed to a worsening of the Veteran's c. diff colitis. See December 2006, August 2006, February 2007, June 2007 treatment records. Regarding the Veteran's cardia arrhythmias, the October 2019 VA examiner opined that the Veteran's cardiac arrhythmia was less likely than not proximately due to or aggravated by the Veteran's service-connected diabetes mellitus. The October 2019 examiner noted that the Veteran had been treated for seizures and a fall from a bed prior to January 2008, and noted that seizures and head injury could precipitate potentially a cardiac arrhythmia if those injuries were significant enough, but noted that it was purely speculative based on the evidence available for review. The Board notes that the examiner did not provide sufficient analysis regarding the relationship between the Veteran's seizures and head injury and the Veteran's service-connected disabilities. Specifically, the examiner did not discuss whether the symptoms of the Veteran's diabetes, including hypoglycemia and hyperglycemia contributed to the Veteran's seizures, falls, and head injury. See July 2007 treatment record (Veteran would fall several times each day and had significant dementia, poorly controlled diabetes mellitus with retinopathy and peripheral neuropathy, and hypertension; January 2008 treatment record (longer acting insulin and oral agents held until there was a more clear picture of the Veteran's fall). In addition, the examiner did not discuss whether the Veteran's bilateral diabetic retinopathy with ischemic maculopathy contributed to the Veteran's falls and head injury. See July 2007 treatment record (provider opined that the Veteran's falls were worsened by visual disturbance). The October 2019 examiner noted that most cardiac arrhythmias have an unknown etiology and the cause of the Veteran's cardiac arrhythmias could not be determined from the medical evidence reviewed. The examiner did not provide any discussion regarding risk factors for cardiac arrhythmias and whether the Veteran had any of the relevant risk factors for a cardiac arrhythmia, including cardiovascular disease or other heart conditions. See June 2006 treatment record (diagnosis of cerebral atherosclerosis); April 2006 treatment record (brain MRI revealed possible chronic ischemia/infarction with subsequent gliosis); June 2006 treatment record (treatment provider opined Veteran's dementia was probably mixed Alzheimer's dementia and cardiovascular dementia); July 2007 treatment record (treatment provider opined Veteran's dementia favored vascular dementia, Binswanger's microvascular variant); and December 2007 treatment record (x-ray revealed congestive heart failure). Additionally, although the examiner noted that the Veteran's blood glucose values in January 2008 were not associated with precipitating a cardiac arrhythmia, the examiner did not discuss whether diabetes itself was a risk factor for heart arrhythmias, whether symptoms of the Veteran's diabetes contributed to a worsening of the Veteran's cardia arrhythmia, including worsening of any underlying risk factors for cardiac arrhythmias, including cardiovascular disease or other heart conditions. See July 2007 treatment record (noted that the Veteran's glucose would be controlled to address prevention of further decline from the Veteran's vascular disease); January 2008 treatment record (Veteran underwent a cardiorespiratory event and noted that the Veteran had pre-existing diabetes mellitus). The examiner noted that the Veteran's ischemic maculopathy was one of a group of diseases which affect diabetics, which are known collectively as diabetic retinopathy. The examiner opined that the condition had no pathophysiological effect on the development of cardiac arrhythmia. The examiner did not discuss whether the Veteran's bilateral eye disability contributed to a worsening of the Veteran's cardiac arrhythmia, including worsening of any underlying risk factors for cardiac arrhythmias, including cardiovascular disease or other heart conditions, and failure to comply with recommended treatment plans, including the ability to taking medications as directed. Similarly, with regards to dementia, no VA examiner has provided an opinion regarding the relevant risk factor for dementia, and whether the Veteran had any of the relevant risk factors for dementia, including cardiovascular disease; whether the symptoms of the Veteran's diabetes contributed to a worsening of the Veteran's dementia, including worsening of any underlying risk factors for dementia, including cardiovascular disease. In addition, no VA examiner has discussed whether the Veteran's bilateral eye disability contributed to a worsening of the Veteran's dementia, including a worsening of the underlying risk factors for dementia, including cardiovascular disease, and failure to comply with recommended treatment plans, including taking medications as directed. Finally, no VA examiner has considered whether the Veteran's cardiac arrhythmia was related to the Veteran's elevated blood pressure in service. See April 1982 service treatment record. The Board finds that a supplemental VA opinion is warranted to determine whether the Veteran's service-connected disabilities contributed to the cause of the Veteran's death. The matters are REMANDED for the following action: 1. Obtain a VA addendum opinion from a VA clinician with appropriate expertise to review the Veteran's claims folder. The claims folder should be reviewed, including a copy of this Remand. Following a review of the Veteran's record, the examiner should address the following: (a.) whether it is at least as likely as not (50 percent or greater likelihood) that cardiac arrhythmias manifested during service, or that it is otherwise causally or etiologically related to a period of active duty service. The examiner should consider and discuss the service treatment records which reflect findings of elevated blood pressure. Regarding whether the Veteran's cardiac arrythmias and/or dementia are proximately due to or aggravated by the Veteran's service connected disabilities, the examiner should consider and discuss the following: (b.) the risk factors for cardiac arrhythmias and dementia; (c.) whether cardiovascular disease is a risk factor for cardiac arrhythmia and dementia; (d.) whether diabetes mellitus, including symptoms of hypoglycemia, is a risk factor for cardiac arrythmias, dementia and cardiovascular disease; (e.) whether it is at least as likely as not (50 percent or greater likelihood) that cardiac arrhythmias are proximately due to a service-connected disability to include diabetes mellitus; (f.) whether it is at least as likely as not (50 percent or greater likelihood) that cardiac arrhythmias were aggravated (any increase in severity beyond the natural progression of the disorder) by a service-connected disability to include diabetes mellitus; (g.) whether it is at least as likely as not (50 percent or greater likelihood) that dementia was proximately due to a service-connected disability to include diabetes mellitus; (h.) whether it is at least as likely as not (50 percent or greater likelihood) that dementia was aggravated (any increase in severity beyond the natural progression of the disorder) by a service-connected disability to include diabetes mellitus. Regarding whether the Veteran's falls and head injuries caused or aggravated the Veteran's cardiac arrhythmias and dementia, the examiner should consider and address the following: (a.) whether the symptoms of the Veteran's diabetes mellitus, including hypoglycemia and peripheral neuropathy, contributed to the Veteran's seizures, falls, and head injury; (b.) whether the Veteran's bilateral diabetic retinopathy with ischemic maculopathy contributed to the Veteran's falls and head injury; (c.) whether the Veteran's seizures, falls, and head injury caused or aggravated the Veteran's cardiac arrhythmias and dementia. Regarding the Veteran's clostridium difficile colitis, the examiner should address and discuss the following: (a.) whether it is at least as likely as not (50 percent or greater likelihood) that clostridium difficile colitis was proximately due to a service-connected disability to include diabetes mellitus with symptoms of chronic diarrhea. (b.) whether it is at least as likely as not (50 percent or greater likelihood) that clostridium difficile colitis was aggravated (any increase in severity beyond the natural progression of the disorder) by a service-connected disability to include diabetes mellitus with symptoms of chronic diarrhea. Finally, the examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's service connected disabilities, including diabetes, contributed substantially or materially to the Veteran's death, aided or lent assistance to the production of death, resulted in debilitating effects and general impairment of health to the extent that it rendered the Veteran materially less capable of resisting the effects of his cardiac arrhythmia, dementia, or clostridium difficile colitis, or were of such severity as to have a material influence in accelerating death. The examiner may assume that the Veteran's service-connected diabetes mellitus and diabetic retinopathy with ischemic maculopathy, which are each rated at 100 percent, are debilitating. See 38 C.F.R. § 3.312(a)-(c). The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If the examiner finds that an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or by the examiner (does not have the knowledge or training). (Continued on the next page) The examiner should note that "in keeping" with the benefit of the doubt rule, which is the standard of proof for veterans benefits, "Congress has not mandated that a medical principal must have reached the level of scientific consensus to support a claim for veterans benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Instead, Congress adopted a "low standard of proof" for VA to employ to "resolve a scientific or medical question in the claimant's favor so long as the evidence for and against that question is in 'approximate balance.'" Id. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.