Citation Nr: 22016208 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-03 655 DATE: March 21, 2022 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus type II prior to June 22, 2021, is denied. Entitlement to a rating of 40 percent, and no higher, for diabetes mellitus, effective June 22, 2021, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. Prior to June 22, 2021, management of the appellant's diabetes mellitus type II did not require any regulation of activity. Associated erectile dysfunction is not manifested by penile deformity. There was no compensable renal involvement. 2. Since June 22, 2021, the appellant has not experienced episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, or twice a month visits to a diabetic care provider. Associated erectile dysfunction is not manifested by penile deformity. There has been no compensable renal involvement. 3. The appellant is not unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for diabetes mellitus type II prior to June 22, 2021, 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 rating of 40 percent, and no higher, for diabetes mellitus, effective June 22, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, DC 7913. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Army from August 1967 to May 1977, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to a rating in excess of 20 percent for diabetes mellitus type II and denied entitlement to a TDIU. The appellant was afforded a tele-hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. A transcript is of record. In August 2021, the Board, in pertinent part, remanded the issues of entitlement to a rating in excess of 20 percent for diabetes mellitus type II and entitlement to a TDIU. In an October 2021 rating decision, the RO increased the evaluation of diabetes mellitus type II to 40 percent, effective September 22, 2021. Although a higher rating was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The RO also awarded entitlement to service connection for erectile dysfunction, and entitlement to special monthly compensation based on loss of use of a creative organ, both effective October 28, 2009. Such constitutes a full award of the benefits sought on appeal with respect to the claims. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). A Supplemental Statement of the Case (SSOC) was issued in October 2021. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 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 disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The appellant's diabetes mellitus, type II is evaluated under DC 7913. Under DC 7913, a 10 percent rating is warranted for diabetes mellitus which is manageable by restricted diet only. A 20 percent rating is warranted where the condition requires one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted where the condition requires one or more daily injection of insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted where the condition 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 rating is warranted where the condition requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). Compensable complications of diabetes are 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 DC 7913. Id. at Note 1. Because DC 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 appellant'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 appellant's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). For example, if a claimant does not require daily injections of insulin, the claimant is unable to receive a rating greater than 20 percent for diabetes mellitus. 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus type II prior to September 22, 2021, and in excess of 40 percent thereafter. For the reasons that follow, the Board finds that entitlement to a rating in excess of 20 percent for diabetes mellitus type II prior to June 22, 2021, is not warranted, and that a rating of 40 percent, and no higher, is warranted effective June 22, 2021. The appellant was afforded a VA diabetes mellitus examination in December 2013. The claims file was reviewed. Treatment for diabetes mellitus included prescribed oral hypoglycemic agent(s). The examiner specifically indicated that regulation of activities was not required as part of medical management of the Veteran's diabetes mellitus. The appellant visited his diabetic care provider for episodes of ketoacidosis less than two times a month, and for episodes of hypoglycemia less than two times a month. No episodes of ketoacidosis or hypoglycemic reactions required hospitalization over the past 12 months. There was no progressive unintentional weight loss or loss of strength attributable to diabetes mellitus. Complications included diabetic peripheral neuropathy. Regarding functional impact, the appellant required ready access to toileting facilities, and routine meal and test breaks. The examiner noted that such accommodations for those requirements in the workplace may be necessary. The VA examiner noted that the appellant reported having had glomerulonephritis at age 16, but such had resolved. There was no evidence of aggravation by diabetes mellitus type II. The appellant had hypertension but did not have diabetic renal disease. He also had paroxysmal atrial fibrillation, but such was not known to be related to diabetes mellitus type II. The appellant was afforded a VA diabetes mellitus examination in December 2016. The claims file was reviewed. The appellant's diabetes mellitus was managed by restricted diet and a weekly injection of dulaglutide. The examiner specifically indicated that regulation of activities was not required as part of medical management. The appellant visited his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemia. There had been no episodes of ketoacidosis or hypoglycemic reactions which required hospitalization over the past 12 months. There was no progressive unintentional weight loss or loss of strength attributable to diabetes mellitus. Complications of diabetes mellitus included diabetic peripheral neuropathy, and diabetic nephropathy or renal dysfunction. Chronic kidney disease was at least as likely as not permanently aggravated by diabetes mellitus. There was no functional impact. During the January 2021 hearing, the appellant testified that he was told by his physician to restrict his activities as part of diabetic management. Specifically, he was told to restrict his endurance so he did not get overly tired, and that he needed to eat smaller meals so his body can digest nutrients more quickly. He also indicated that such interfered with his ability to get a job because he must take multiple breaks for meals. Of record is a September 22, 2021, statement from N.S., M.D., the appellant's primary care provider at Munson Healthcare, Frankfort Medical Group. Dr. N.S. stated that she had last seen the appellant on June 22, 2021, and that the appellant's diabetes mellitus type II now required insulin, restricted diet, and regulation of activities. Based on the entirety of the appellant's medical history, Dr. N.S. also advised the appellant to avoid strenuous occupational and recreational activities which would raise his stress levels to adversely affect blood sugars or increase his frequency of hypoglycemic episodes. He was, however, advised to maintain a regular exercise program and to limit strenuous activity to reduce the probability of hypoglycemic episodes, particularly because he had atrial fibrillation. Dr. N.S. also "determined that [the appellant] is unable to be employable due to his chronic medical conditions." No further explanation was offered. The appellant was afforded a contracted diabetes mellitus examination in October 2021. The claims file was reviewed. Treatment for diabetes mellitus included management by restricted diet, prescribed oral hypoglycemic agent(s), and more than one injection of insulin per days. The appellant required regulation of activities as part of medical management. Specifically, it was noted that he had been told to avoid strenuous exercise in order to avoid hypoglycemia. The appellant visited his diabetic care provider for episodes of ketoacidosis less than two times a month, and for hypoglycemia less than two times a month. There had been no episodes of ketoacidosis or hypoglycemia which required hospitalization over the past 12 months. There had been no progressive unintentional weight loss or loss of strength attributable to diabetes mellitus. Complications included diabetic peripheral neuropathy, diabetic nephropathy or renal dysfunction, and erectile dysfunction. Regarding functional impact, the appellant was on insulin, which poses a risk for hypoglycemia, and, as a result, must avoid strenuous exercise. The examiner also noted that the appellant had to be very cautious when exerting himself so as to avoid hypoglycemia as he was on insulin. It was noted that the appellant also had neuropathy in the left hand and in both feet. He trips, drops objects, and usually does not drive as a result. In October 2021, the appellant expressed displeasure that the October 2021 rating decision assigned an effective date of September 22, 2021, for the 40 percent rating for diabetes mellitus type II, although it assigned an effective date of October 28, 2009, for the award of service connection for erectile dysfunction, and for special monthly compensation for loss of use of a creative organ. He also stated that Dr. N.S., who provided the September 2021 statement, had treated him since January 2013, and contended that the statement detailed such treatment going all the way back to 2013. He also stated that he did not remember any compensation and pension examination which addressed whether there was any restriction of activities. After reviewing the evidence of record, the Board finds that the evidence is in relative equipoise as to whether the appellant's diabetes mellitus type II required regulation of activities beginning June 22, 2021. As such, a 40 percent rating is warranted, effective June 22, 2021. The September 2021 statement of Dr. N.S. states that she last saw the appellant on June 22, 2021, and that his diabetes mellitus type II was "now requiring insulin, a restricted diet, and regulation of his activities" [emphasis added]. However, the evidence is against the award of a rating in excess of 20 percent prior to June 22, 2021, or a rating in excess of 40 percent thereafter. The questions in this appeal are whether the appellant's diabetes mellitus required (a) one or more daily injections of insulin, restricted diet, and regulation of activities prior to June 22, 2021, and (b) whether such required one or more daily injections 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, thereafter. As delineated above, there is no competent evidence that the appellant's diabetes mellitus type II required regulation of activities prior to June 22, 2021. As such, a rating in excess of 20 percent is not warranted prior to June 22, 2021. The Board has considered the appellant's contentions that the September 2021 letter of Dr. N.S. summarizes the severity of his diabetes mellitus type II for the entire period since January 2013, but finds that the clinical evidence of record establishes otherwise. As noted above Dr. N.S. clearly stated that there was "now" a need for regulation of activities. If Dr. N.S. had wished to convey that the appellant's diabetes mellitus type II required regulation of activities since she began treating him, Dr. N.S. would have done so. Additionally, the December 2013 and December 2016 VA examiners, following examination of the appellant and review of the claims file, determined that regulation of activities was not required as part of medical management of diabetes mellitus. To the extent that the appellant contends that his diabetes mellitus type II has required regulation of activities for the entire period on appeal, again, medical evidence is required. Camacho, supra. As reflected above, the December 2013 and December 2016 examination reports expressly find that the Veteran did not require regulation of activities at that time and there is no clinical evidence of the requirement for regulation of activities prior to the effective date assigned by the Board. To the extent that the appellant argues that he has been told by a medical professional that he must regulate his activities due to diabetes mellitus type II, the Board assigns more probative weight to the contemporaneous clinical evidence of record. See e.g. Warren v. Brown, 6 Vet. App. 4 (1993) (a claimant's lay statements relating what a medical professional told him, filtered as they are through a layperson's sensibilities, are too attenuated and inherently unreliable to constitute competent evidence to support a claim). Diabetic Complications The Board has also considered the applicability of separate compensable ratings for complications of diabetes. As directed by the rating criteria, diabetic peripheral neuropathy of the left upper and bilateral lower extremities are assigned separate compensable ratings. The propriety of such ratings are not currently on appeal. While the appellant is in receipt of special monthly compensation for loss of use of a creative organ, which is the result of his erectile dysfunction, which is due to his diabetes mellitus, there are no compensable complications of erectile dysfunction under the schedular criteria. Indeed, there is no indication, nor is it contended, that the appellant experiences penile deformity. As such, erectile dysfunction is not a compensable complication of diabetes mellitus and is thus considered a noncompensable complication which is part of the diabetic process. Turning to the question of whether the appellant has any compensable complications of diabetes which affect the kidneys, or renal system, the Board observes that entitlement to service connection for diabetic renal complications was denied in an April 2010 rating decision. Following an April 21, 2010, notification letter, the appellant filed a timely NOD, received in November 2010. An SOC was issued in June 2013, but the appellant did not perfect a timely appeal, nor was new and material evidence received within the applicable period. As such, the April 2010 rating decision is final and not subject to revision on the same factual basis. However, to the extent that the question of whether the appellant has a kidney disability which is causally related to, or aggravated by, diabetes mellitus type II is part and parcel of the increased rating claim currently before the Board, despite the appellant not perfecting a timely appeal of the issue of service connection for a kidney disability, the Board finds that a separate compensable rating is not warranted for any renal/kidney involvement during any portion of the period on appeal. The appellant was afforded a VA kidney conditions examination in December 2013. The claims file was reviewed. The only diagnosis rendered was glomerulonephritis, but it was noted that such had resolved. The appellant reported that the diagnosis of such had been rendered when he was 16 years old and that he needed a waiver to enlist due to such. However, the appellant also reported that he has had no further problems with his kidney function since that time. At present, continuous medication was not required, there was no renal dysfunction, there was no kidney, ureteral, or bladder calculi (urolithiasis), there was no history of recurrent symptomatic urinary tract or kidney infections, there had been no kidney transplant or removal, there were no benign or malignant neoplasms or metastases, and there was no functional impact. Laboratory studies included BUN of 15, creatinine of 1.1, EGFR of 67, RBC's/HPF negative, proteinuria (albumin) negative, and spot urine microalbumin/creatinine less than 4. It was noted that there was a personal history of glomerulonephritis at age 16 and that such had been documented to be resolved by the appellant's primary care provider and that there was no evidence of any aggravation by diabetes mellitus. The appellant was afforded a VA kidney conditions (nephrology) examination in December 2016. The claims file was reviewed. Based on the appellant's given history, a 1962-1963 diagnosis of glomerulonephritis was noted. Chronic kidney disease, stage three, was noted to have been diagnosed in November 2016. The appellant's kidney function, however, was normal based upon VA treatment records and a VA examination in March 2010. A December 2013 VA examination report indicated that the appellant had glomerulonephritis in 1963 which required a medical waiver to enter onto active duty. However, the appellant reported that he had no further problems with his kidney functions since that time. The December 2016 VA examiner noted that review of VA medical records since December 2013 documented significant worsening of the appellant's kidney function. The appellant reported that he was taken off Metformin in September 2016, and placed on a weekly Dulaglutide injection. Metformin was noted to decrease kidney function, but it had been used to control blood sugar. The current treatment plan for the appellant's kidneys did not include taking continuous medication. Although there was renal dysfunction, regular dialysis was not required, there were no signs or symptoms due to renal dysfunction, there was no hypertension or heart disease caused by any kidney condition, there was no symptomatic renal tubular disorder, and there were no frequent attacks of colic with infection (pyonephrosis). There had not been, and there was not currently, kidney, ureteral, or bladder calculi (urolithiasis). There was no history of recurrent symptomatic urinary tract or kidney infections. There had not been a kidney transplant or removal. There was no benign or malignant neoplasm or metastases. Laboratory studies revealed normal BUN of 1.3, normal creatinine of 1.3, and abnormal EGFR of 54.9. There was no functional impact. The VA examiner also noted that the appellant had had hypertension since the 1980s but there was no evidence in change of control of his hypertension. The December 2016 VA examiner also opined that it was at least as likely as not that the appellant's chronic kidney disease, stage 3 (moderate), was aggravated by his diabetes mellitus type II. The examiner explained that the appellant had a history of glomerulonephritis with normal kidney function since childhood. He developed diabetes and began treatment in 2009. His EGFR had decreased since his December 2013 VA examination. Both the appellant's service-connected diabetes mellitus and the Metformin he had been taken for his diabetes are known to decrease kidney function. The appellant's chronic kidney disease had deteriorated from stage 1 to stage 3 since December 2013. June 2019 VA clinical notes from the Saginaw VA Medical Center reveal that the appellant had a kidney stone and that surgical ureteral stone removal was performed. In June 2020, records reveal an acute renal injury and that it was suspected that such had been secondary to the reintroduction of diuretic therapy. The appellant was also noted to have chronic kidney disease and that creatinine was recently measured as 3 but had been consistently 1.2 most of the year. However, one year ago creatinine had increased to 2.1 when the appellant had a kidney stone. Current renal ultrasound was unremarkable. A July 2021 VA clinical note states that the appellant had chronic kidney disease, stage 3A, but such was stable. It was also noted that a renal ultrasound had been normal in March 2021, but the appellant still complained of chronic kidney disease issues. The September 2021 statement of Dr. N.S. notes that Empagliflozin was being tried, provided it does not have a negative effect on the appellant's kidneys, in an attempt to avoid the use of short-term insulin. The October 2021 contracted examiner indicated that the appellant had diabetic nephropathy or renal dysfunction caused by diabetes mellitus on the diabetes mellitus Disability Benefits Questionnaire (DBQ). As such, a kidney conditions examination was also conducted. Following examination of the appellant and review of the claims file, it was determined that the appellant did not have a diagnosed kidney disability. Although the appellant had renal dysfunction, there were no signs or symptoms due to such; and there was no functional impairment in earning capacity. Regular dialysis was not required, continuous medication was not required, there was no related hypertension or heart disease, there was no symptomatic renal tubular disorder, and there were no frequent attacks of colic with infection (pyonephrosis). While the appellant had kidney and ureter calculi (urolithiasis) and he had undergone 0-1 invasive or non-invasive procedures per year on average, with the last procedure having occurred in June 2019, there was no diet therapy or drug therapy required and there were no signs or symptoms due to urolithiasis. There was no history of recurrent symptomatic urinary tract or kidney infections. There had been no kidney transplant or removal. There was no benign or malignant neoplasm or metastases. There was no functional impact. Laboratory studies revealed normal BUN (19), creatinine (1.00), and EGFR (74). In October 2021, the appellant stated that he had been directed by his physician to discontinue the use of Metformin in January 2016 and start using insulin due to fear of more kidney damage. He referenced a November 2016 VA examination report which included a kidney diagnosis and the September 2021 contracted examination report that stated there was no current kidney disability. The appellant surmised that the lack of a kidney diagnosis was based on the result of lab work performed at the time of the September 2021 examination. The appellant was informed by the Saginaw VA Medical Center in a December 2021 letter that his renal function was "okay on 2 separate determinations of August and now November," and that "[t]he protective effects of Jardiance on the kidneys sometimes take 6 months or more to be evidence. Sometimes there is a short-term decline in kidney function but this did not happen." The Board finds that the most probative evidence of record establishes that there are not any compensable symptoms of any kidney disability which was caused or aggravated by service-connected diabetes mellitus type II. A note following DC 7913 states that compensable complications of diabetes are to be separately evaluated unless those complications are part of the criteria used to support a 100 percent evaluation for diabetes mellitus; noncompensable complications, however, are considered part of the diabetic process under DC 7913. See 38 C.F.R. § 4.119, DC 7913, Note (1). Effective November 14, 2021, VA amended 38 C.F.R. § 4.115a and 4.115b in part, to include amending §4.115a by revising the introductory text and the table entries for "Renal dysfunction" and "Urinary tract infection," revising the entry for DC 7508, removing the entry for DC 7510, revising the entry for DC 7541, as well as other changes not pertinent to the appellant's instant appeal. See Schedule for Rating Disabilities; The Genitourinary Diseases and Conditions, 86 Fed. Reg. 54081 (Sep. 30, 2021). Prior to November 14, 2021, DC 7541 pertained to renal involvement in diabetes mellitus type I or II and directs that such disability should be evaluated based on the criteria pertinent to renal dysfunction. 38 C.F.R. § 4.115b. Effective November 14, 2021, DC 7541 directs that renal involvement in diabetes mellitus type I or II be rated as renal dysfunction. 38 C.F.R. § 4.115b. In cases where rating criteria are amended during the course of the appeal, the Board must consider both the former and current schedular criteria. Should an increased rating be warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). For the reasons delineated below, the Board finds that the new criteria is no more or less favorable than the old criteria, because the appellant does not have any renal symptoms which warrant a compensable rating under either version, even assuming such are causally related to diabetes mellitus type II. Criteria prior to November 14, 2021 Under 38 C.F.R. § 4.115a, a 30 percent rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under DC 7101. A 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. An 80 percent rating is warranted for persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80 mg percent; or, creatinine 4 to 8 mg percent; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss or limitation of exertion. A maximum rating of 100 percent is warranted where renal dysfunction requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg percent; or, creatinine more than 8 mg percent; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. Albuminuria refers to the presence of albumin, a protein, in the urine. Dorland's Illustrated Medical Dictionary 45 (32nd ed. 2012). Albuminuria is also known as proteinuria and is the presence of an excess of serum proteins in the urine. Booton v. Brown, 8 Vet. App. 368, 369 (1995). Even assuming arguendo that the appellant has, or had, a current kidney disability causally related to, or aggravated by, service-connected diabetes mellitus type II at any point during the period on appeal, such would not have warranted a compensable rating at any point during the period on appeal. Indeed, regardless of etiology, the appellant has not experienced (a) albumin constant or recurring with hyaline and granular casts or red blood cells; (b) transient or slight edema; (c) constant albuminuria with some edema; (d) definite decrease in kidney function; (e) persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80 mg percent; (f) creatinine 4 to 8 mg percent; (g) generalized poor health characterized by lethargy, weakness, anorexia, weight loss or limitation of exertion; (h) renal dysfunction which requires regular dialysis; (i) renal dysfunction precluding more than sedentary activity from one of the following: persistent edema and albuminuria; (j) BUN more than 80mg percent; (k) creatinine more than 8 mg percent; or (l) markedly decreased function of kidney or other organ systems, especially cardiovascular. With respect to the "definite decrease in kidney function," which is part of the 60 percent criteria, the term "definite" has been defined as "distinct, unambiguous, and moderately large in degree," representing impairment that is "more than moderate but less than rather large." VAOPGCPREC 9-93, 59 Fed. Reg. 4752 (1994); see also Hood v. Brown, 4 Vet. App. 301 (1993). VA General Counsel concluded in a precedent opinion that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." In the context of an earlier version of the rating criteria for psychiatric disorders, "definite" represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov 9,1993). Although the opinion was offered in a different context, specifically with respect to an earlier version of the rating criteria, the Board still finds it instructive, here, as in the context of the rating criteria for renal dysfunction, at issue is the extent of the impairment. As such, the definition of "distinct, unambiguous, and moderately large in degree" is highly probative. As delineated above, the December 2013 VA examiner noted that there was no renal dysfunction and that the appellant himself reported he had no further problems with his kidney function since glomerulonephritis had resolved. The October 2021 contracted examiner noted that, although the appellant had renal dysfunction, there were no signs or symptoms due to such; and there was no functional impairment in earning capacity. Although the September 2016 VA examiner diagnosed chronic kidney disease, stage 3, and opined that such had been caused or aggravated by diabetes mellitus type II and medications prescribed for such, the examiner also noted that there was no functional impact. Even assuming arguendo that the September 2016 VA examination report and opinion is more probative as to the presence of a kidney disability caused or aggravated by diabetes mellitus, a separate compensable rating would not be warranted. Finally, there is no indication, nor is it contended, that the appellant's hypertension is caused or aggravated by diabetes mellitus type II and/or a kidney disability. Rather, the December 2013 VA examiner, the December 2016 VA examiner, and the October 2021 contracted examiner all determined that there is no related hypertension or heart disease. Indeed, the December 2016 VA examiner specifically noted that the appellant had had hypertension since the 1980s but there was no evidence in change of control of his hypertension. Regarding the June 2019 kidney stone and the June 2020 notations of acute renal injury and chronic kidney disease, even assuming arguendo such were caused or aggravated by diabetes mellitus, again, such did not result in a compensable rating. Notably, renal ultrasound was normal in March 2021. The notations about diabetic medication changes to avoid negative kidney effects indicate that any exacerbations were acute and temporary, and resolved after medications were adjusted. In any event, to assign a separate compensable rating for any discrete periods of symptoms would violate the rule regarding stabilization of ratings. 38 C.F.R. § 3.344. Criteria effective November 14, 2021 Under the new 38 C.F.R. § 4.115a criteria for renal dysfunction, a noncompensable rating is warranted with GFR from 60 to 89 mL/min/1.73 m2 and albumin/creatinine ratio (ACR) 30 mg/g for at least 3 consecutive months during the past 12 months. A 30 percent rating is warranted with GFR from 60 to 89 mL/min/1.73 m2 and structural kidney abnormalities (cystic, obstructive, or glomerular) for at least 3 consecutive months during the past 12 months; or GFR from 60 to 89 mL/min/1.73 m2 and either recurrent red blood cell (RBC) casts, white blood cell (WBC) casts, or granular casts for at least 3 consecutive months during the past 12 months; or CKD with GFR from 45 to 59 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. A 60 percent rating is warranted with CKD with GFR from 30 to 44 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. An 80 percent rating is warranted with CKD with GFR from 15 to 29 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. Additionally, a note states GFR, estimated GFR (eGFR), and creatinine-based approximations of GFR will be accepted for evaluation purposes under § 4.115a when determined to be appropriate and calculated by a medical professional. Even assuming arguendo that the appellant has, or had, a current kidney disability causally related to, or aggravated by, service-connected diabetes mellitus type II at any point during the period on appeal, such would not have warranted a compensable rating at any point since November 14, 2021, under the new criteria. Indeed, regardless of etiology, since November 14, 2021, the appellant has not experienced (a) GFR from 60 to 89 mL/min/1.73 m2 or worse for at least 3 consecutive months during the past 12 months; (b) albumin/creatinine ratio (ACR) 30 mg/g or worse for at least 3 consecutive months during the past 12 months; (c) structural kidney abnormalities (cystic, obstructive, or glomerular) for at least 3 consecutive months during the past 12 months; or (d) either recurrent red blood cell (RBC) casts, white blood cell (WBC) casts, or granular casts for at least 3 consecutive months during the past 12 months. As the evidence is not in approximate balance and is persuasively against the appellant's contentions, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). TDIU VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 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(a), 4.16(a). For the above purpose 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, or of 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. Id. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but 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. Van Hoose, 4 Vet. App. at 363. 2. Entitlement to a TDIU. For the reasons that follow, the Board finds that the most probative evidence establishes that the appellant is not unable to secure or follow a substantially gainful occupation due to service-connected disabilities for any portion of the period on appeal. Throughout the period on appeal, service connection is in effect for (a) posttraumatic stress disorder (PTSD), rated as 70 percent disabling; (b) diabetes mellitus type II with erectile dysfunction, rated as 20 percent disabling prior to June 22, 2021, and 40 percent thereafter; (c) right lower extremity peripheral neuropathy, rated as 10 percent disabling; (d) left lower extremity peripheral neuropathy, rated as 10 percent disabling; (e) left upper extremity peripheral neuropathy, rated as 10 percent disabling; (f) left big toe fracture, distal phalanx, rated as noncompensable; and (g) left ear hearing loss, rated as noncompensable. Service connection is also in effect for tinnitus, which is rated as 10 percent disabling, effective July 14, 2014, and hypothyroidism, which is rated as 10 percent disabling, effective January 1, 2021. The appellant's combined evaluation for compensation is 80 percent prior to July 14, 2014, and 90 percent thereafter. The Board observes that the appellant meets the schedular criteria for consideration of a TDIU because his service-connected PTSD is rated as greater than 60 percent disabling for the entire period on appeal. 38 C.F.R. § 4.16. On his August 2013 VA Form 21-8940, the appellant contended that he is unable to secure or follow a substantially gainful occupation as the result of his service-connected PTSD and diabetes mellitus type II. He last worked full-time in 2002, his disability affected full-time employment in 2009, and he became too disabled to work in 2009. His highest year of earnings was 2002 when he worked as a procurement analyst. He had a four-year college education and he had undergone training required by the government for his job between 1980 and 2002. On an updated VA Form 21-8940 received in December 2013, the appellant reported that he worked in accounting in 2005, for 10 hours a week, at a company he owned himself. He also elaborated on the training he had received, noting that he took college classes in accounting and taxation. On his July 2014 VA Form 21-8940, the appellant contended that it was his PTSD, diabetes mellitus type II, and left ear hearing loss which rendered him unemployable. On his January 2020 VA Form 21-8940, the appellant contended that he was unemployable due to his diabetes mellitus type II with renal complications, including kidney disease. The appellant also noted that, when he decided to retire, he could not stay awake during the business day and made more errors than he had made in the past. A July 2011 VA mental health note states that the appellant reported that he had become certified as a service officer for Disabled American Veterans (DAV) and had gone through specialized training. In February 2013, the appellant was seen for an employee health examination for his work with DAV. The December 2013 VA examiner noted that functional impact of the appellant's diabetes mellitus was that he needed ready access to toileting facilities and routine meal and rest breaks. Regarding peripheral neuropathy, the appellant should avoid extreme temperature variations or moist/wet areas, be able to sit or stand at will, protect hands and feet from injury, and avoid direct skin exposure to chemicals. A September 2014 VA treatment notes that the appellant reported that he volunteers as a backup van driver for DAV (Disabled American Veterans). A psychiatric Disability Benefits Questionnaire (DBQ) was completed by a VA licensed clinical social worker in December 2014 and was submitted by the appellant later that month. It was noted that the appellant was unable to work, had strained interpersonal relationships, and experienced isolation. The appellant was noted to be retired, with a college education in accounting. The appellant pled no contest in 2002 regarding a domestic battery incident because he wanted to avoid disclosure of personal information. The appellant was seen at a VA Medical Center in February 2015 for an employee health, DAV driver examination. The December 2016 VA examiner determined that the appellant's peripheral neuropathy and diabetes mellitus resulted in no functional impact. During the January 2021 hearing, the appellant testified that he was told by his physician to restrict his activities as part of diabetic management. Specifically, he was told to restrict his endurance so he did not get overly tired, and that he needed to eat smaller meals so his body can digest nutrients more quickly. He also indicated that such interfered with his ability to get a job because he must take multiple breaks for meals. The appellant also testified that he had not worked since 2002. He contended that he was the beneficiary of protected employment prior to that time, when he worked as a procurement official for 22 years. He had fits of "get out of my face" where he got very close to physically assaulting co-workers. However, his supervisor and colleagues were also veterans and put up with the appellant's social issues because he could get the job done. The appellant also reported that he has a degree in accounting and master's degrees in taxation and accounting. He testified that he has been unable to find employment because of his personality. The appellant also testified that he and his wife have a small accounting practice, which had grossed less than $10,000 since 1978. He argued that he was unable to earn a living from this practice as he would be well under the poverty level if only his income from the accounting practice were considered. He also explained that the business had originally begun as a way to keep him focused on something other than his symptoms or the needs of his young children. The appellant described the business endeavor as "an attempt to self-medicate." He testified that the accounting practice was still continuing, but he and his wife had not "broken $10,000 more than two or three years since 1978." Of record is a September 22, 2021, statement from N.S., M.D., the appellant's primary care provider at Munson Healthcare, Frankfort Medical Group. Dr. N.S. "determined that [the appellant] is unable to be employable due to his chronic medical conditions." No further explanation was offered. The Board remanded the matter, in part, in order to obtain additional information as to the functional impact of the appellant's service-connected diabetes mellitus. To that end, the October 2021 contracted examiner determined that the appellant's diabetes mellitus caused functional impairment in the form of an inability to perform strenuous exercise, as his insulin posed a risk for hypoglycemia. Erectile dysfunction resulted in no functional impairment. It was also determined that the appellant's peripheral neuropathy resulted in functional impairment in the form of numbness and weakness in the hand and feet. This makes the appellant struggle to hold objects and to trip often. The appellant also noted that he did not usually drive due to fear of making mistakes. Finally, it was determined that no functional impairment resulted from any kidney disability. Notably, since his retirement in 2002, the appellant became certified as a service officer for DAV. See July 2011 VA mental health note. Although this was prior to the period on appeal, VA medical records also reveal that the appellant underwent employee health examinations in February 2013 and February 2015 for his work with DAV. In February 2015, it was noted that the appellant was a driver for DAV. During a September 2014 VA clinical visit, the appellant reported that he volunteered as a backup van driver for DAV. As determined by the Board in August 2021, in the context of the increased rating claim for posttraumatic stress disorder (PTSD), even if the appellant has not performed any work as a service officer during the period on appeal, driving a van to drop off and pick up fellow veterans would require at least some level ability to interact with others, which weighs heavily against any finding that the appellant experienced total social impairment. Additionally, although the appellant has reported that he is constantly irritable and that such can turn into arguments and physical altercations, he apparently is able to sufficiently keep his temper in check while driving. Even assuming that the appellant is not able to drive consistently, or at all, due to his service-connected peripheral neuropathy for any portion of the appeal period, he is still able to perform occupational tasks related to his accounting practice. The appellant has reported that he holds a degree in accounting and master's degrees in taxation and accounting. Although the appellant contends that he has been unable to find employment due to his personality, again, his ability to interact with other veterans, as established by his volunteer work with DAV, weighs heavily against his contentions, made in the context of a claim for monetary benefits. Even if the small accounting practice run by the appellant and his wife does not generate income in excess of the poverty level, that fact alone does not mean that the appellant's service-connected disabilities render him unemployable. Rather, by his own reports, the purpose of this accounting practice was to keep him occupied and focused, as "an attempt to self-medicate" for his PTSD symptoms. See January 2021 hearing transcript. There is no evidence to suggest that this accounting practice could not be expanded. In any event, even if the accounting practice could not be expanded, as explained above, the most probative evidence establishes that the appellant is not unemployable by reason of his service-connected disabilities. The appellant has demonstrated that he is able to interact with others during the period on appeal, evidenced by his ability to be a DAV van driver and close familial relationships. He has two master's degrees and has an accounting practice and had a long Federal career in procurement and possesses the aptitude and ability to complete occupational activities such as concentrating to a sufficient level to complete a tax return, organizing complex materials, and demonstrating compliance with legal requirements. The appellant's service-connected disabilities, to include diabetes mellitus, PTSD, hearing loss, and peripheral neuropathy, have not been shown to interfere with his ability to perform occupational activities necessary to complete volunteer work with the DAV or to complete work at his accounting practice. In October 2021, the appellant expressed displeasure that, although the September 2021 statement of Dr. N.S. had been found to be probative in favor of the award of 40 percent rating for diabetes mellitus in the October 2021 rating decision, AB, supra, the statement was not sufficient to award entitlement to a TDIU, although Dr. N.S. had stated that the appellant was "unable to be employable due to his chronic medical conditions." No further explanation was offered. A piece of evidence may have probative value in one context but not another. Indeed, "even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight." Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Here, the opinion of Dr. N.S. is conclusory and wholly unsupported by rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). It does not differentiate between service-connected and non-service-connected disabilities. Additionally, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that 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 is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Finally, the Board, as finder of fact, has determined that the opinion of Dr. N.S. is inconsistent with the probative evidence of record. Indeed, as delineated above, the appellant has been, and is, able to perform occupational tasks required by an accounting job, for which he has the training and experience, throughout the period on appeal. Even if the appellant must now regulate his activities due to service-connected diabetes mellitus and/or limit tasks such as driving due to peripheral neuropathy, he is still able to perform accounting work, as such can be performed at a desk, where he may sit or stand as needed. A TDIU is not meant to compensate a veteran for his or her volunteer work, or to supplement retirement income, when the veteran is still capable of securing or following a substantially gainful occupation, although he or she may not wish to do so full-time. As the evidence is not in approximate balance and is persuasively against the appellant's contentions, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Behlen, 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.