Citation Nr: 21041855 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 15-27 292A DATE: July 10, 2021 ORDER Entitlement to a rating in excess of 20 percent for type II diabetes mellitus is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran's diabetes mellitus required only restricted diet, insulin, and an oral glycemic agent during the period on appeal. 2. While the Veteran experiences some functional impact due to his service-connected disabilities, it is not so severe to preclude him from securing any substantially gainful occupation or employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code (DC) 7913. 2. The criteria for entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities have not been met. 38 U.S.C. § 1155, 5107; 38C.F.R. §§3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from October 1961 to January 1967 and again from January 1970 to February 1978. The Veteran is a Bronze Star recipient and has also been awarded the Army Commendation Medal. These matters come before the Board of Veterans' Appeals (Board) from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has been before the Board twice before. In a December 2017 decision, the Board remanded the issues for further development and a new VA examination. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The matter returned to the Board in March 2021 and was remanded again after the Board found that additional evidence had been submitted to the record and had not yet been reviewed by the agency of original jurisdiction (AOJ). The Board's remand directive stated that the VA RO must issue a supplemental statement of the case (SSOC) which reflects consideration of all additional evidence of record submitted since the most recent adjudication by the RO in July 2020. The Board is now satisfied that there was substantial compliance with its remand orders and is prepared to adjudicate the issues at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 20 percent for type II diabetes mellitus The Veteran contends that a higher evaluation is warranted for his diabetes mellitus, type II. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 7913 for diabetes mellitus provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 20 percent evaluation is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent evaluation is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent evaluation is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent evaluation is warranted when diabetes requires 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. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran' favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities to warrant a 40 percent rating under Diagnostic Code 7913. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires that the evidence must show that it is medically necessary for the Veteran to avoid strenuous occupational and recreational activities. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran's diabetes mellitus required only restricted diet, daily injection of insulin, and an oral glycemic agent. Private treatment records, VA treatment records and VA examinations do not show any regulation of activities. Notably, private treatment records and VA treatment records showed exercise has consistently been encouraged as a means of treatment for the Veteran's symptoms of diabetes. The medical evidence of record is against a finding that regulation of activities was required during the period on appeal. In October 2013, the Veteran was afforded a VA examination. The examiner noted that the Veteran was now prescribed insulin injections to be taken more than once a day. However, the examiner still found that the Veteran did not have any restriction of activity. The examiner found that the Veteran had no complications due to his diabetes either. However, the examiner did find a functional impact. It was noted that the Veteran in unable to continue his occupation as a truck driver due to his need for insulin and a possible hypoglycemic reaction. In 2014, the Veteran's private doctor recommended the Veteran begin participating in a walking program. In 2015, the Veteran's private provider again recommended that the Veteran increase his exercise. In 2018, the Veteran was seen at a VA clinic and was again told to exercise to help combat his diabetes. In September 2019, the Veteran was once again afforded a VA examination. The examiner noted that the Veteran is treated with a restricted diet, an oral hypoglycemic agent, and injections of insulin but does not require regulation of activities as part of the medical management of his diabetes mellitus. The examiner also noted that the Veteran was not hospitalized for any episodes of ketoacidosis or a hypoglycemic reaction in the last 12 months. The exam did show that the Veteran suffers from diabetic neuropathy and diabetic nephropathy, both recognized as complications of his diabetes. The exam also noted that the Veteran suffered a functional impact due to his diabetes. Specifically, the examiner finds that diabetes mellitus, type II, requiring insulin negatively impacts the Veteran's occupation as an over the road trucker. The examiner finds that the Veteran's complications due to his diabetes do not impact his ability to work, just the diabetes itself. In August 2019, the Veteran was seen at the St. Charles VA outpatient clinic and it was noted that the Veteran needed to get better control of his diabetes. The Veteran was also encouraged to exercise as much as possible to lower his A1C. The Veteran was again seen at the St. Charles clinic in January 2020. He was again encouraged to exercise regularly to attempt to lower his A1C. In October 2020, the Veteran's A1C was measured at 8.7 and the staff physician at the St. Charles clinic stated that she was pleased with his progress. In November 2020, the Veteran reported his A1C was down to 8.1 and his goal was to get the number down to 7. In April 2021, the Veteran was assessed over the phone by the St. Charles outpatient clinic. The report stated that the Veteran currently had uncontrolled diabetes due to his diet and worsening A1C despite medication use. The September 2019 VA examination found the Veteran to be suffering from diabetic neuropathy and diabetic nephropathy related to his diabetes. Subsequently, the Veteran was found to be service connected for these conditions in July 2020 and was assigned a disability rating for both conditions by a rating decision. The Board affords significant weight to the VA examinations in the Veteran's claim file. No VA examination finds the Veteran's diabetes mellitus to be managed through the restriction of activities. Furthermore, no private treatment records or VA treatment records advise the Veteran to treat his diabetes through a restriction of activities. To the contrary, the Veteran is encouraged by both private providers and the VA to increase his exercise and exercise regularly. The Veteran is consistently found to be treated with a restricted diet, an oral hypoglycemic agent, and insulin injections. Due to these facts, the Board finds that the Veteran's service-connected diabetes mellitus most closely approximates a 20 percent disability rating. The preponderance of the evidence is against assigning an evaluation higher than 20 percent, and entitlement to an increased evaluation for diabetes mellitus must be denied. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities The Veteran seeks a TDIU. He contends that he is unable to work due to his service-connected disabilities A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: diabetic nephropathy associated with diabetes mellitus, type II (rated 60 percent, from August 2017); coronary artery disease (rated 10 percent from September 2006 and increased to 30 percent from January 2021); diabetes mellitus, type II (rated 20 percent from September 2006); left lower extremity diabetic sensory polyneuropathy associated with diabetes mellitus, type II (rated at 20 percent from May 2015); and right lower extremity diabetic sensory polyneuropathy associated with diabetes mellitus, type II (rated at 20 percent from May 2015). He had a combined disability rating of 30 percent prior to May 26, 2015, and a rating of at least 60 percent as of that date. Therefore, the Veteran met the schedular criteria for a TDIU rating as of May 26, 2015. See 38 C.F.R. § 4.16(a). Nonetheless, the Board must consider both entitlement to TDIU on a schedular basis as of May 26, 2015, and whether the evidence warrants referral to the appropriate VA officials for entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b) prior to that date. For a Veteran to prevail on a claim of entitlement to a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the reasons that follow, the Board finds that neither a TDIU on a schedular basis on and after May 26, 2015, nor referral for consideration of whether TDIU is warranted prior to that date on an extraschedular basis, is warranted. In July 2013, the Veteran submitted a lay statement in which he claims that his diabetes has gotten worse as he is now on insulin, which has made him stop driving commercially. In October 2013, the Veteran had a VA examination at which he stated that he was unable to keep his job as a truck driver due to the fact that he had to have insulin injections and the possibility of a hypoglycemic reaction. The Veteran submitted another lay statement in which he stated he was put on insulin in 2011 and quit his job as a cross country truck driver in January 2011. On the Veteran's VA Form 21-8940 (application for increased compensation based on unemployability), the Veteran reported that his diabetes mellitus, type II is the service-connected disability that prevents him from securing substantially gainful occupation. The Veteran also listed truck driver as his only employment, from 2001 to 2011. Finally, the Veteran noted that he completed high school but did not obtain any education beyond that. In 2013, the Veteran's private doctor, Dr. T.E., submitted a letter stating that the Veteran is insulin dependent, is morbidly obese, has coronary artery disease and is unable to work. In 2014, the Veteran received a VA examination for posttraumatic stress disorder. The examiner stated that the Veteran was a mechanic in service and after service he worked as a machinist, milk delivery man, and then retired as a truck driver. The VA Form 21-4192, completed and submitted by the Veteran's former employer, stated that he began as a truck driver in October 1999 and worked until January 2011 when he retired. The record indicated that the Veteran also retired in June 2007 but was rehired in January 2008 and worked for another three years until his final retirement in January 2011. The record stated that the law does not allow truck drivers to be taking insulin and that is why the Veteran had to leave his job. On the VA examination that the Veteran received in September 2019, the examiner noted that the Veteran's diabetes mellitus negatively impacted his job as a commercial truck driver. However, the examiner found that the Veteran's diabetic nephropathy and diabetic neuropathy did not impact his ability to work. In VA treatment records from December 2019, the Veteran reported that he was beginning a new job, working from Monday through Friday from 1 PM to 5 PM. Later in December 2019, the Veteran stated that he interviewed for a job at an art gallery but stated that it was "not going to work out." The Veteran also received a VA examination for his coronary artery disease in October 2020 and the examiner specifically stated that the Veteran's heart condition would not impact his ability to work. The Board concedes that the Veteran's ability to keep his job as a truck driver is impacted by the physical effects of his diabetes mellitus, type II. The Veteran is unable to work as a commercial truck driver due to his need for insulin injections. However, this does not preclude the Veteran from securing another substantially gainful occupation. The evidence of record does not support any finding that the Veteran's diabetes mellitus alone would prevent him from performing all types of other employment. This finding is supported by the fact that he was able to secure part-time employment in December 2019; although this job reportedly did not "work out," the Board sees this as evidence that the Veteran is able to obtain and maintain employment, albeit not as a truck driver. The Board further notes that at that treatment visit, the Veteran voiced his desire to pursue Upon review of the above evidence, the Board concludes that the Veteran's service-connected disabilities do not preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran stated on the record that he is still able to perform house chores. It is also noted that aside from his diabetes mellitus, which has been noted only to preclude his ability to work as an over-the-road truck driver, no other service-connected disability is found to impact the Veteran's ability to work. While the diabetes does preclude the Veteran from retaining his old job as a commercial truck driver, there are a number of other jobs that are available to the Veteran that would fall under the category of substantially gainful occupation. While the Veteran is service connected for a host of disabilities and has a combined rating of 90 percent for these disabilities, the evidence of record does not support a finding that the Veteran would be unable to secure substantially gainful employment. As a final note, the Board reiterates that the Veteran did not meet the percentage requirements for a TDIU on a schedular basis, prior to May 26, 2015. Moreover, as there is no evidence to support a finding that his disabilities are outside the norm (prior to May 26, 2015), the Board finds that referral for extraschedular consideration for the initial period on appeal is not warranted. Van Hoose, 4 Vet. App. 361. Accordingly, a basis for a grant of a TDIU, including on an extraschedular basis prior to May 26, 2015, has not been presented during the appeals period. Thus, the Board finds that the evidence does not demonstrate that the Veteran is unemployable due to his service-connected disabilities. As such, the preponderance of the evidence is against the Veteran, and the claim for a TDIU must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.