Citation Nr: 1648549	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  12-03 255	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an initial rating higher than 20 percent for type 2 diabetes mellitus.

2.  Entitlement to a total disability rating due to individual unemployability (TDIU).


ATTORNEY FOR THE BOARD

A. Gibson









INTRODUCTION

The Veteran served on active duty in the U.S. Army from July 1968 to July 1971.

This appeal to the Board of Veterans' Appeals (Board) is from an October 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In August 2015, the Board remanded these issues for additional development, which has been completed.  In this decision, the Board continues the Veteran's 20 percent rating for diabetes.  The Board also finds that the evidence is insufficient to grant a TDIU.


FINDINGS OF FACT

1.  The Veteran's diabetes is treated with insulin and restricted diet, but does not require regulation of activities.

2.  His hypertension does not manifest with diastolic pressure predominantly 100 or more, or with systolic pressure predominantly 160 or more.  The evidence does not show a history of diastolic pressure predominantly 100 or more.  He also does not have a heart disability.

3.  The Veteran has not met his evidentiary burden in regards to TDIU.


CONCLUSIONS OF LAW

1.  The criteria are not met for a rating higher than 20 percent for type 2 diabetes mellitus with hypertension.  The criteria are not met for a separate rating for hypertension or for a heart disability.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.321, 4.1, 4.6, 4.104, 4.119, DCs 7101, 7913 (2015).
2.  The criteria are not met for a TDIU.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act (VCAA)

VA has complied with its duty to assist in developing this claim.  38 C.F.R. § 3.159(c).  His relevant treatment records have been associated with the claims file, to the extent the Veteran has provided authorization to obtain them.  The Board notes that the RO was directed to obtain updated treatment records following the August 2015 decision and remand.  The Veteran was sent a letter in October 2015, asking for information regarding his treatment providers and his employment, to which he did not respond.  He does not obtain treatment at VA.  He has been provided with VA examinations, which are adequate for adjudicatory purposes.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  He has not alleged any prejudicial deficiencies in the development of this claim.

Increased rating

Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2015).  Separate diagnostic codes (DCs) identify the various disabilities.  See generally 38 C.F.R. Part 4.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

The Veteran's diabetes is currently rated 20 percent disabling under DC 7913.  38 C.F.R. § 4.119.  Under this DC, a 20 percent rating is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet.  A 40 percent rating is warranted for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities.  A 60 percent rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities, and involving episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or visits to a diabetic care provider twice a month plus complications that would not be compensable if separately evaluated.  A maximum rating of 100 percent is assigned for diabetes mellitus requiring more than one daily injection of insulin; a restricted diet; and regulation of activities (avoidance of strenuous occupational and recreational activities); and, involving 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.  Id.

The Veteran has appealed for a higher rating for his diabetes, but the record does not show that a higher rating is warranted.  None of the VA examinations show that the Veteran must regulate his activities, which is required for the next higher rating for diabetes.  Comacho v. Nicholson, 21 Vet. App. 360, 364 (2007).  The Veteran was given the opportunity to supplement the record with additional updated medical evidence, but he did not respond to efforts to further develop the record.  The duty to assist is a two-way street, especially in cases where the treatment is not provided by VA or some other government agency, as authorization from the Veteran must first be obtained.  Without the Veteran's cooperation, VA is unable to obtain such treatment records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Accordingly, his 20 percent rating is continued.  

The Veteran has alleged that he must regulate his activities, in that he has to test his blood sugar and take insulin shots.  He has also reported that he is encouraged to exercise.  This is not the type of activities that are encompassed by the regulation.  Instead, "regulation of activities" is defined as the "avoidance of strenuous occupational and recreational activities."  38 C.F.R. § 3.119, DC 7913.  As noted above, the record does not demonstrate that the Veteran has been advised to regulate his activities due to his diabetes.

The Board notes that he is service connected for type 2 diabetes mellitus with hypertension, but that hypertension has not been separately rated.  The Board considered whether a separate rating for hypertension is warranted, and found that it is not as he does not meet the criteria for a compensable rating.

Hypertension is rated under DC 7101.  38 C.F.R. § 4.104.  Under DC 7101, a 10 percent rating is warranted when the evidence shows diastolic pressure predominantly 100 or more; or, systolic pressure predominantly 160 or more; or, when the evidence shows a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  Id.  

The record does not show the above criteria has been met.  He does take medication for his hypertension, but the record does not show that he has a history of diastolic pressure of 100 or more.  At the VA examinations, his blood pressure readings were recorded, and did not exceed diastolic pressure of 100 or systolic pressure of 160.  The Board notes that the effects of his medication in regulating his blood pressure are contemplated by the regulation.  Jones v. Shinseki, 26 Vet. App. 56 (2012).

The Veteran has argued that the July 2009 VA examination report showed that he had a heart disability that was related to his diabetes.  This was investigated by the November 2015 VA examiner, who found it unlikely.  The examiner indicated that the July 2009 report was normal.  He noted that the ECG (electrocardiogram) showed possible acute pericarditis, but follow up testing, including X-ray, showed that his heart was normal.  He was given an echocardiogram in August 2009 that showed a normal pericardium.  The examiner indicated that the echocardiogram is a more sensitive indicator of pericarditis, and since it was normal, the Veteran did not have pericarditis at that time.  Further, the examiner indicated that he had no other current heart disabilities.  Therefore, a separate rating for a pericarditis or other heart disability is not warranted.

The Veteran does have separate ratings for various complications of diabetes, including glaucoma and cataracts, peripheral neuropathy, and peripheral vascular disease, which are not under appeal and need not be further discussed here.  

The record does not show any other symptoms of his diabetes that are not being compensated.  Esteban v. Brown, 6 Vet. App. 259 (1994).  There is no suggestion that it is an unusual or exceptional case, or that the rating schedule is inadequate to rate the Veteran's diabetes.  Thun v. Peake, 22 Vet. App, 111 (2008).  Indeed, it has not been shown to have interfered with his employment or caused him to be hospitalized.  See 38 C.F.R. § 3.321(b)(1).  There is no suggestion that diabetes combines with any of his other disabilities to produce an unusual disability picture.  Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  Accordingly, referral for extraschedular consideration is not warranted for diabetes.

TDIU

The Board inferred a claim for TDIU in the August 2015 decision and remand, because the evidence suggested that he was unemployable due to the severity of his disabilities. 

Where a veteran's schedular rating is less than total, a total disability rating may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided certain requirements are met.  Under 38 C.F.R. § 4.16(a), if the veteran has only one such disability, then this disability shall be ratable at 60 percent or more; if the veteran has two or more such disabilities, then there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a); see also 38 C.F.R. § 4.25.  VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19. 

Here, the Veteran has met the eligibility requirements since at least September 2011.  

The remaining inquiry is whether he is unemployable, which the Board does not find is shown by the available evidence.  As mentioned above, the Veteran was asked to provide information regarding his employment, education, and training history, to which he did not respond.  See Wood, supra.  That evidence could have been crucial to this claim.  Thus, the record does not contain information regarding his past work history or his level of education.  The medical evidence does show that his disabilities prevent him from prolonged standing and walking, but this, without more, is insufficient to grant a TDIU.  

The Board is grateful for the Veteran's honorable service.  However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise regarding entitlement to TDIU.  See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits ...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29   (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination).










ORDER

The claim of entitlement to an initial rating higher than 20 percent for type 2 diabetes mellitus is denied.

The claim of entitlement to a TDIU is denied.



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs 

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s