Citation Nr: 21030276 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-08 759 DATE: May 18, 2021 ORDER A rating in excess of 40 percent for diabetes mellitus, type II, is denied. From August 1, 2013, to October 2, 2017, a total disability rating based on individual unemployability (TDIU) due to a single service-connected disability is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's diabetes mellitus, type II, required the use of insulin, a restricted diet, and regulation of activities, but did not result in episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, with complications that would not be compensable if separately rated. 2. From August 1, 2013, to October 2, 2017, a single service-connected disability did not render the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913. 2. From August 1, 2013, to October 2, 2017, the criteria for a TDIU due to a single service-connected disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In September 2018, the Board denied a rating in excess of 40 percent for diabetes mellitus, type II, and the Veteran appealed such decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted his and the Secretary of VA's (the parties') Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board's decision. In February 2020, the Board assumed jurisdiction over the issue of entitlement to a TDIU prior to October 4, 2016, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018), and remanded the case for additional development. In December 2020, the Board recharacterized the issue of entitlement to a TDIU as entitlement to a TDIU due to a single service-connected disability from August 1, 2013, to October 2, 2017, in light of the award of a combined 100 percent schedular rating for the entire appeal period and special monthly compensation (SMC) at the housebound rate from May 9, 2013, to August 1, 2013, and as of October 2, 2017, in a September 2020 rating decision, and again remanded the case for additional development. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). In March 2021, the Board dismissed the appeal due to the Veteran's death in February 2021. Later that month, the appellant, the Veteran's surviving spouse, was recognized as a substitute claimant for the purpose of processing this appeal to its completion. The case now returns for further appellate review. The Board notes that, subsequent to the issuance of the most recent supplemental statement of the case in December 2020, additional evidence consisting of VA treatment records was associated with the record. While the appellant has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence, the Board finds no prejudice results to her in proceeding with a decision at the present time as such evidence is irrelevant to the instant claims or contain findings that are duplicative of those previously considered by the AOJ. 38 C.F.R. § 20.1305(c). 1. Entitlement to a rating in excess of 40 percent for diabetes mellitus, type II. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board stems from the Veteran's May 9, 2013, claim, for an increased rating for his diabetes mellitus, type II, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, such disability has been rated as 40 percent disabling pursuant to DC 7913. Such DC provides that a 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted 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. A 100 percent rating is warranted for diabetes mellitus 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. Note (1) provides that complications of diabetes mellitus are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under DC 7913. Importantly, the rating criteria under DC 7913 are successive and, therefore, to establish a given disability rating, all the rating criteria for that and for lower ratings must be met. See Camacho v. Nicholson, 21 Vet. App. 360 (2007); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Stated another way, if a component is not met at any one level, a veteran can only be rated at the level that did not require the missing component. After a review of the record, the Board finds that a rating in excess of 40 percent for the Veteran's service-connected diabetes mellitus, type II, is not warranted. In this regard, to warrant a higher rating in the instant case, the evidence must, at a minimum, demonstrate that the Veteran' diabetes required 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. While VA treatment records dated throughout the appeal period reflect that the Veteran required insulin injections more than once per day, was counseled to control his diet, reported difficulty engaging in physical activity without getting winded, and experienced episodes of hypoglycemia, such do not show any episodes of ketoacidosis or hypoglycemia requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. Furthermore, an October 2014 VA examination revealed that the Veteran was prescribed an oral hyperglycemic agent, and required insulin injections more than once per day. However, the Veteran was not medically required to regulate his activities as part of the management for diabetes, he saw his provider less than 2 times per month, he had no episodes of ketoacidosis or hyperglycemia requiring hospitalization, and he did not have a progressive weight loss or loss of strength. Similarly, in an October 2016 Disabilities Benefits Questionnaire (DBQ) completed by Dr. R.B., the Veteran's private treatment provider, it was noted that the Veteran was prescribed more than one insulin injection per day and required regulation of activities as part of the medical management of his diabetes as strenuous activity can precipitate hypoglycemia; however, he saw his provider less than 2 times per month, had no episodes of ketoacidosis or hyperglycemia resulting in hospitalization, and did not have progressive weight loss or loss of strength. Consequently, the Board finds that a rating in excess of 40 percent for the Veteran's diabetes mellitus, type II, is not warranted. Specifically, because of the successive nature of the rating criteria for such disability, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the criteria listed in the 60 percent rating must be met in order to warrant such a rating. See Tatum, supra. In the instant case, the evidence reflects that the Veteran does not require twice per month visits to his provider, or have episodes of ketoacidosis or hyperglycemic reactions resulting in hospitalization, thus he does not meet all the criteria of a 60 percent rating. With regard to diabetic complications under Note (1), the Board finds that there are no complications of the Veteran's diabetes that warrant separate ratings other than his already service-connected chronic renal disease (with hypertension), peripheral neuropathy of the bilateral upper and lower right extremities, diabetic retinopathy, and impotency. In this regard, while the appellant's representative argued in his April 2021 Written Brief Presentation that the Veteran's psoriasis is a complication of his diabetes, such is not supported by the evidence of record and he, as a lay person, is not competent to offer an opinion on such matter. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, the Veteran's treatment records, October 2014 VA examination, and October 2016 DBQ reveal no additional complications associated with his diabetes mellitus. Moreover, to the extent that the appellant's representative cited a medical article indicating that diabetes can affect the skin, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion, Mattern v. West, 12 Vet. App. 222, 228 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). In short, articles and treatises tend to be general in nature and do not relate to the specific facts in a given case. In the present case, the article cited by the appellant's representative falls into this general category as it does not pertain specifically to this Veteran and are not combined with an opinion rendered by a medical professional addressing the facts of his specific case. Thus, such evidence is not probative as to the instant matter. The Board has also considered the potential application of Petermann v. Wilkie, 30 Vet. App. 150 (2018), in determining whether the schedular ratings contemplated the Veteran's use of insulin more than one time per day. However, the Board finds that the instant case is distinguishable from Petermann as the Veteran has not claimed that the severity of his diabetes is not adequately contemplated by his existing schedular rating. Moreover, while the rating criteria for a 100 percent rating includes the requirement of more than one daily injection of insulin whereas lower ratings merely require the use of insulin, the lower ratings are not exclusive to the amount of use. Such general construction of the regulation considers any and all amounts of required insulin use in the 20, 40, and 60 percent rating criteria. Thus, the entirety of the Veteran's symptoms related to his diabetes mellitus, type II, are contemplated by the currently assigned schedular rating. In making its determination in the instant case, the Board acknowledges the Veteran's and appellant's belief that his diabetes is more severe than as reflected by the currently assigned rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that they are competent to provide statements regarding his observable symptomatology, they are not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert, supra. Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of his diabetes in light of the rating criteria to be more persuasive than his and the appellant's own reports regarding the severity of such condition. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected diabetes mellitus, type II; however, the Board finds that his symptomatology was stable throughout the appeal period. Therefore, assigning staged ratings is not warranted. Furthermore, neither the Veteran, appellant, or their representatives have raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching the decision in this case, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant's claim for an increased rating for the Veteran's diabetes mellitus, type II. Thus, the benefit of the doubt doctrine is not applicable and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU due to a single service-connected disability from August 1, 2013, to October 2, 2017. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant 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. The ultimate question, however, 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, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." The Court also defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. As noted in the Introduction, the Veteran was in receipt of SMC at the housebound rate from May 9, 2013, to August 1, 2013, and as of October 2, 2017. 38 U.S.C. § 1114(s). Thus, the claim for a TDIU is only viable to the extent that such is based on a single service-connected disability from August 1, 2013, to October 2, 2017. See Buie at 250; Bradley, supra. Specifically, VA must assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. In this regard, Subsection 1114(s) requires that a disabled veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by that statute. Under the law, subsection 1114(s) benefits are not available to a veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. For SMC purposes, a TDIU based on a single service-connected disability satisfies the requirement of a "service-connected disability rated as total." See Buie at 251; Bradley at 293. From August 1, 2013, to October 2, 2017, the Veteran is service-connected for asbestosis, evaluated as 30 percent disabling as of September 8, 2015; chronic renal disease (with hypertension), evaluated as 60 percent disabling; coronary artery disease, status post myocardial infarction (CAD), evaluated as 60 percent disabling; diabetes mellitus, type II, evaluated as 40 percent disabling; diabetic neuropathy of the right upper extremity (RUE), evaluated as 30 percent disabling; posttraumatic stress disorder (PTSD), evaluated as 10 percent disabling prior to April 21, 2014, and 30 percent disabling thereafter; diabetic neuropathy of the left upper extremity (LUE), evaluated as 20 percent disabling; diabetic neuropathy of the right lower extremity (RLE), evaluated as 10 percent disabling; residuals of fracture of the right fifth toe, evaluated as noncompensably disabling; nodule secondary to verruca removal of the left right finger, evaluated as noncompensably disabling; diabetic retinopathy, evaluated as noncompensably disabling; and impotency, evaluated as noncompensably disabling. In this regard, the Veteran is in receipt of a 40 percent rating for his diabetes and has been assigned separate ratings for his diabetic complications of chronic renal disease (with hypertension), peripheral neuropathy of the bilateral upper and lower right extremities, diabetic retinopathy, and impotency; however, such cannot be combined into a "one disability" for the purposes of satisfying the criteria of one disability that is rated at 100 percent based on a TDIU for SMC purposes under 38 U.S.C. § 1114(s). Consequently, the remaining inquiry is whether a single service-connected disability rendered the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and work history from August 1, 2013, to October 2, 2017. With respect to the Veteran's education and work history, in his Applications for Increased Compensation Based on Unemployability (VA Form 21-8940) received in August 2004, October 2005, July 2009, and October 2016 reflect that he worked full-time from November 1969 to April 2000 or 2002 as a truck driver for Xerox, and from April 2002 or May 2004 to June 2004 as a truck driver for Stanton AG Services. The Veteran also reported that he had a high school education and attended the police academy from 1984 to 1987. However, the Veteran has never alleged that a single service-connected disability rendered him unemployable. Rather, he claimed that his diabetes, neuropathy, and PTSD in August 2004, and all service-connected disabilities in October 2005, July 2009, and October 2016 rendered him unable to secure or follow a substantially gainful occupation. Further, in October 2016, the Veteran also reported that he had to surrender his commercial driver's license (CDL) because he was on insulin, and had to give up his sheriff's duties as he could not handle the physical or mental stress. However, VA treatment records dated in 2003 reflect the Veteran's report that, after he retired from truck driving, he continued to work on his farm and served as a reserve deputy for a police department. Further, in December 2009, he reported that, in addition to truck driving, he performed other jobs at Xerox, but did not identify them. Moreover, a review of the evidence of record likewise fails to show that a single service-connected disability rendered the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and work history from August 1, 2013, to October 2, 2017. Specifically, the record is void of any report or allegation that the Veteran's residuals of fracture of the right fifth toe and nodule secondary to verruca removal of the left right finger affected his ability to work. Furthermore, a May 2013 DBQ and August 2015 VA examination reflect that the Veteran's CAD did not affect his ability to work. Additionally, an October 2014 VA examination reveals that the Veteran's PTSD resulted in, at most, occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication, due to anxiety, suspiciousness, and panic attacks that occur weekly or less often. Furthermore, such disability was found to result in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) at any point during the relevant time period. Additionally, October 2014 VA examinations reflect that the Veteran's diabetes mellitus, type II, and related complications, to include impotency (erectile dysfunction) and neuropathy, which were separately evaluated, did not impact his ability to work. In this regard, the Board notes that the appellant's representative argued in his April 2021 Written Brief Presentation that the Veteran's diabetic neuropathy of the LUE and RUE would pose a problem for him when working as a truck driver as he was losing his sensory ability and grip strength. However, the October 2014 VA examiner noted the Veteran's subjective reports of moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the LUE and RUE, but found no evidence of decreased strength, to include with his grip, on examination and no impact on his ability to work. Furthermore, while the Veteran reported that he could no longer hold a CDL as he required insulin, the Board finds that such fact alone does not indicate that he is unable to secure or follow a substantially gainful occupation consistent with his education and work history as the evidence shows that he was able to perform other occupational duties that do not require a CDL, to include serving as a deputy for a police department, a position for which he attended the police academy. Moreover, the Veteran himself reported that he performed other jobs with Xerox and, after his retirement, was able to perform work on his farm. Finally, while November 2015 and September 2017 VA examinations reflect that the Veteran's asbestosis rendered him unable to perform strenuous employment and limited him to ambulating five minutes a time, respectively, the Board finds that his education and work history would allow him to perform other occupations that do not require strenuous physical work and would allow him to reduce his need to ambulate, to include driving, whether it be a truck, van, or car. Consequently, the Board finds that, at no time between August 1, 2013, to October 2, 2017, did a single service-connected disability render the Veteran unable secure or follow a substantially gainful occupation consistent with his education and work history. Therefore, the Board finds that the criteria for a TDIU based on a single service-connected disability during such time period have not been met. As the preponderance of the evidence is against such claim, there is no doubt to be resolved and the appeal must be denied. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge, 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.