BVA9404350 DOCKET NO. 92-00 778 ) DATE ) ) ) THE ISSUES 1. Entitlement to an increased rating for diabetes mellitus with neuropathy, currently assigned a 40 percent evaluation. 2. Entitlement to a total rating for compensation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran served on active duty from January 1949 to January 1950, from October 1950 to November 1951, and from January 1956 to May 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Seattle, Washington, Regional Office (RO). A November 1991 rating decision denied claims for an increased rating for diabetes mellitus with neuropathy (or diabetes) and a total rating for compensation purposes based on individual unemployability. The notice of disagreement was received in December 1991. The RO issued a statement of the case in January 1992. The substantive appeal was received in January 1992. The case was initially received and docketed at the Board in February 1992. The representative, Disabled American Veterans, submitted additional written argument in June 1992. The case was remanded in October 1992 to obtain Social Security Administration (SSA) records. The RO issued a supplemental statement of the case in February 1993. The case was again received at the Board in March 1993 and docketed in April 1993. Disabled American Veterans submitted additional written argument in April 1993. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his service-connected diabetes is more severely disabling than currently evaluated. He further contends that a total rating should be granted for individual unemployability based on service-connected disability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claims. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for a total rating based on individual unemployability due to service-connected disabilities. For the following reasons and bases, it is the decision of the Board that the evidence pertinent to an increased rating for diabetes is in equipoise. Thus, according the benefit of the doubt to the veteran, as required by law, the claim is granted. FINDINGS OF FACT 1. Diabetes mellitus with neuropathy is manifested by insulin dependence, background diabetic retinopathy, minimal paresthesia, and hypoglycemic episodes by history 3 or 4 times per year, without diabetic ketoacidosis or renal complications, productive of not more than severe impairment. 2. The veteran last worked in September 1989 as a bus driver for Intercity Transit. He had previously worked as a school bus driver, a maintenance supervisor, and a heavy equipment operator. In the service, he served as a mortician and performed other duties as needed. He has a general equivalency diploma. 4. The veteran is service connected for diabetes mellitus with neuropathy, rated 60 percent, bilateral hearing loss, rated 30 percent, psychophysiologic gastrointestinal reaction, rated 10 percent, residuals of gunshot wound to muscle group XI on the right calf, rated 10 percent, and for residuals of shell fragment wound of the left hip, postoperative left inguinal hernia, residuals of a tumor of the left kidney, prostatitis, hypertension, and dermatophytosis of the feet, all rated noncompensable. He is not service connected for his residuals of C6 nerve root compression, residuals of spermatic cord lipoma with left testicular enlargement and neuralgia, and adhesive capsulitis of the left shoulder. 5. The veteran's service-connected disabilities alone are not so incapacitating as to prevent him from engaging in all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 60 percent for diabetes mellitus with neuropathy are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.119, Diagnostic Code 7913 (1993). 2. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the provisions of 38 U.S.C.A. § 5107 have been met, in that the appellant's claims are well grounded and adequately developed. Disability evaluation are determined by the Department of Veterans Affairs (VA) Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Different diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Total disability evaluations for compensation are assigned, where the schedular rating is less than total, when the veteran is unable to secure or retain substantially gainful employment as a result of service-connected disability, without regard to age. If only one such disability is present, it must be rated 60 percent or more, if there are two or more such disabilities, one must be rated at least 40 percent and the combined rating must be 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19. Moderately severe diabetes requiring large insulin dosages, restricted diet, and careful regulation of activities, i.e., avoidance of strenuous occupational and recreational activities, is rated 40 percent. Severe diabetes with episodes of ketoacidosis or hypoglycemic reactions but with considerable loss of weight and strength and with mild complications, such as pruritus ani, mild vascular deficiencies, or beginning diabetic ocular disturbances will be rated 60 percent. Pronounced, uncontrolled diabetes mellitus with repeated episodes of ketoacidosis or hypoglycemic reactions, restricted diet, regulation of activities, and progressive loss of weight and strength, or severe complications is rated 100 percent. 38 C.F.R. § 4.119, Diagnostic Code 7913. Review of the history of the veteran's service-connected diabetes shows that service connection for this disability was granted in a rating decision dated in February 1983. VA medical examination in December 1982 had showed a diagnosis of diabetes, which began with an abnormal glucose tolerance test in the 1970's. On examination, the veteran was normal neurologically, and without cyanosis, clubbing, or edema. Diabetes was controlled with oral medication. In September 1989 while at his job as a bus driver, the veteran sustained a left shoulder, arm, and neck injury in a motor vehicle accident. In September and December 1989, private physicians observed that the veteran was overweight and did not eat a diabetic diet as directed. Blood sugar was therefore high. Optometry examination in December 1989 showed background diabetic retinopathy. In a letter which appears to be dated in July 1990, D. T. Conrad, M.D., stated that the veteran had painful limitation of motion of the left upper extremity and a frozen shoulder. He also stated that the veteran had a pain syndrome of which diabetes definitely might be a factor. In August 1990, J. W. McBurney, M.D., found that the veteran could work on a reasonably continuous basis by avoiding overhead work which he could not perform due to his left shoulder impingement syndrome. At a VA medical examination in December 1990, it was noted that the veteran was obese and that injected insulin use was being considered due to poor control of diabetes with oral medication. Blood sugars had been running around 300. Hypoglycemic episodes had occurred 3 or 4 times over the prior year, by history. There was no history of diabetic ketoacidosis. He had minimal paresthesia in the lower extremities but denied renal and retinal complications. The diagnosis was diabetes mellitus type II. Regarding the veteran's other service-connected disabilities, it was found at the December 1990 VA examination that the average puretone threshold of the right ear was 65 with 72 percent speech recognition, and the average puretone threshold of the left ear was 68 with 64 percent speech recognition. Mental health evaluation revealed that his psychophysiologic gastrointestinal reaction was largely asymptomatic, and he used Rolaids as needed to control symptoms. Gunshot wound to the right calf caused only rare tenderness, without other discomfort. Prostatitis and hypertension had not recurred since 1973. No disabling residuals of kidney tumor, hernia repair, shell fragment wound to the left hip, or dermatophytosis of the feet were complained of or noted. In June 1991, the veteran's private physician, G. M. Blackner, M.D., stated that, considering the veteran's hypertension, diabetes, partial shoulder disability, and general physical health, it was unlikely that he would ever return to full-time gainful employment. In June 1991, W. Penn, M.D., observed that the veteran had a plethora of medical problems, including defective hearing, diabetes controlled by oral agents, prostatitis by history, hypertension, and gunshot wound to the calf. He had, however, coped with all of these and worked as a bus driver for many years, when he was involved in a motor vehicle accident. His left shoulder had become much worse and developed adhesive capsulitis and an impingement syndrome with decreased motion and pain, which prevented him from working. On examination of the extremities, distal pulses were good and there was no clubbing or edema. The abdomen was obese and protuberant. The left shoulder was severely disabled. After extensive attempts at private vocational rehabilitation following the veteran's shoulder injury, a report dated in June 1991 stated that he was not a candidate for such rehabilitation. A vocational counselor had spoken with the veteran one month before, when he stated that he would have to earn $15.00 dollars per hour to be motivated to return to work. He was advised that this expectation was not realistic. He insisted that he was "retired." The counselor stated that, given the veteran's disabled presentation, physical condition as a whole, poor motivation, personality, and age of 60, it was not likely that he would return to work. His time loss benefit from his left shoulder work-related accident was discontinued as of July 10, 1991. The veteran has subsequently advised that he was found to be 20 percent permanently disabled by residuals of this accident by the state Department of Labor and Industries. The veteran testified before the SSA in September 1991 that he had poorly controlled diabetes, which fatigued him and caused blurred vision, and that he was insulin-dependent. Reportedly, his doctors were still trying to adjust his medication. An SSA judge found in January 1993 that the veteran was not able to return to work as a city bus driver after September 1989, due to the combined effect of severe adhesive capsulitis of the left shoulder, diabetes, hearing loss, hypertension, gunshot wound to the right calf, and fatigue. These conditions imposed limitations to standing, walking, lifting, and carrying, and he was severely limited by this. He had a residual capacity for sedentary work. He could not work doing light driving, however, as a state law forbade commercial driving by insulin- dependent diabetics. He could not return to work as a maintenance supervisor, because this job required a great deal of standing and he was fatigued secondary to his poorly controlled diabetes. Given his age and his lack of transferable skills, as well as his many physical disabilities, it was found that he could not work. We have considered all the evidence of record as well as the representative's arguments. The veteran's testimony to the SSA judge that he is fatigued by his poorly controlled diabetes is surprising, in that no medical records reflect this complaint. The medical records, on the contrary, show that diabetes is poorly controlled due to his lack of compliance with dietary restrictions. He is described as well developed and well nourished. There has been no ketoacidosis, loss of weight, or pruritus ani consistent with severe diabetes. Loss of strength has not been attributed to diabetes. Peripheral neuropathy is productive of a mild vascular deficiency, however, and there is some evidence of diabetic ocular disturbance. Hypoglycemic episodes occur occasionally. Therefore, the evidence pertinent to the degree of impairment of diabetes is in equipoise. 38 C.F.R. § 4.119, Diagnostic Code 7913. When all of the evidence for and against a claim is in equipoise, the benefit of the doubt must be accorded to the veteran and the claim granted. 38 U.S.C.A. § 5107. Thus, the evidence warrants a 60 percent rating for diabetes. A 100 percent schedular rating for diabetes is not for application, as there is no evidence that diabetes is pronounced. That is, there is no evidence of repeated episodes of ketoacidosis or hypoglycemic reactions; regulation of activities due to diabetes; progressive weight loss and strength; or severe complications such as to warrant a 100 percent schedular rating. We have also considered the pertinent provisions of 38 C.F.R. Parts 3 and 4 and 38 C.F.R. § 3.321 (b)(1). In this regard, the veteran's diabetes is not so unusual or extraordinary with such related factors as frequent hospitalization as to preclude the use of the regular rating criteria. Accordingly, an extraschedular evaluation is not in order. With regard to the veteran's claim for individual unemployability, it is noted that the veteran is service connected for diabetes mellitus with neuropathy, rated 60 percent; bilateral hearing loss, rated 30 percent; psychophysiologic gastrointestinal reaction, rated 10 percent; residuals of gunshot wound to muscle group XI on the right calf, rated 10 percent; and for residuals of shell fragment wound of the left hip, postoperative left inguinal hernia, residuals of a tumor of the left kidney, prostatitis, hypertension, and dermatophytosis of the feet, all rated noncompensable. He is not service connected for his residuals of C6 nerve root compression, residuals of spermatic cord lipoma with left testicular enlargement and neuralgia, and adhesive capsulitis of the left shoulder. The veteran requests that we consider his left shoulder disability and his other non-service connected disabilities as "factors" contributing to his claim for a total rating based on individual unemployability. We may not do so, however, as the pertinent regulation states quite clearly that only the effects of the service- connected disabilities may be considered as contributing to the claimed unemployability. 38 C.F.R. § 4.16(a). For the same reason, we may not consider the veteran's age as contributing to the unemployability. 38 C.F.R. § 4.19. Therefore, we find helpful, but not binding, the SSA decision, which relied on the effects of the significant non-service-connected disorders when an allowance of disability benefits was granted. The veteran last worked in September 1989 as a bus driver for Intercity Transit. He had previously worked as a school bus driver, a maintenance supervisor of janitorial workers, and a heavy equipment operator. In the service, he served as a mortician and performed other duties as needed. He has a general equivalency diploma. We have reviewed all the relevant evidence. We find that the preponderance is against the claim for a total rating based on individual unemployability. In the instant case, the veteran worked regularly until the date of his left shoulder accident. This tends to show that it is because of the left shoulder injury that he stopped working. It is quite clear, based on the medical evidence as well, that the reason the veteran stopped working is that his left shoulder disability prevented him from returning to work. The medical opinions of record all implicate the effects of the non- service-connected disorders in the reason for unemployability. Despite various private evaluations, there is no opinion that relates the veteran's unemployability to service-connected disabilities alone. We are unable to find that, in the absence of the non-service- connected disabilities and aging, the veteran would be totally disabled by his service-connected disabilities alone. In fact, at the most recent VA medical examination, in December 1990, he was found to be essentially psychophysiologically asymptomatic, with rare tenderness on the right calf, and only a history of hypertension and prostatitis. It is recognized that the veteran has occasional episodes of hypoglycemic reactions, mild neuropathy and the beginning of ocular disturbance, due to diabetes. While he testified that the severity of his diabetes would preclude him from obtaining the necessary license to be a bus driver, the symptoms pertaining to diabetes are not of such severity as to prevent him from performing other work for which he has experience, such as maintenance supervisor of janitorial work. As noted earlier in this decision, the treatment records associated with diabetes do not demonstrate fatigue or severe complications. The extent of his hearing loss is reflected by a 72 percent and 64 percent speech recognition in the right and left ears, respectively, and that loss, either alone or in combination with the other service-connected disorders, also is not shown to prevent all forms of work, including maintenance supervisor. It is again pointed out that the medical opinions of record did not attribute the veteran's unemployability to the effects of service- connected disorders in and of themselves. Finally, the evidence of record also indicates that the veteran himself may contribute to the extent of his disability and his unemployed status. For example, while some evidence notes that the diabetes was poorly controlled, the examiner otherwise pointed out that the veteran's not adhering to recommended diet played a role in the control of his disease process. Additionally, the veteran's poor motivation to return to work was a factor in his not being recommended for vocational rehabilitation. Consequently, while we appreciate that the veteran is impaired to some extent by his service-connected disabilities, as a whole, they do not prevent him from working substantially and gainfully. Accordingly, the claim for a total rating by reason of individual unemployability due to service-connected disabilities must be denied. ORDER Entitlement to a rating of 60 percent for diabetes mellitus with neuropathy is granted, subject to the regulations pertinent to the disbursement of monetary funds. Entitlement to a total rating based on individual unemployability due to service-connected disabilities is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * HARRY M. McALLISTER, M.D. M. SABULSKY *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.