Citation Nr: 18131239 Decision Date: 08/31/18 Archive Date: 08/31/18 DOCKET NO. 15-23 661 DATE: August 31, 2018 ORDER Entitlement to an initial rating in excess 30 percent for service-connected adjustment disorder with anxiety prior to October 28, 2015, and in excess of 50 percent thereafter is denied. Entitlement to service connection for a condition of kidneys, to include as secondary to service-connected diabetes mellitus, type II (diabetes) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to bilateral glaucoma as secondary to service-connected diabetes is remanded. FINDINGS OF FACT 1. Prior to October 28, 2015, the Veteran’s adjustment disorder with anxiety was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. From October 28, 2015, the Veteran’s adjustment disorder with anxiety is productive of occupational and social impairment with reduced reliability and productivity. 3. There is no competent diagnosis, finding, or evidence of condition of kidneys in the record. 4. Throughout the appeal period, the evidence does not show that the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to October 28, 2015, the criteria for an assignment of a rating in excess of 30 percent for service-connected adjustment disorder with anxiety have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code (DC) 9440 (2017). 2. From October 28, 2015, the criteria for an assignment of a rating in excess of 50 percent for service-connected adjustment disorder with anxiety have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.7, 4.126, 4.130, DC 9440 (2017). 3. The criteria for entitlement to service connection for a condition of kidneys, to include as secondary to diabetes, have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to September 1969. In a February 2017 correspondence, the Veteran withdrew his request for a Board hearing. Given such, his request is deemed withdrawn. See 38 C.F.R. 20.704. Increased Rating Adjustment Disorder with Anxiety Legal Principles and Regulations Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. Part 4 (2017). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). An increased rating has an effective date up to one year prior to receipt of the claim, if it is “factually ascertainable” that worsening took place within that one-year time period. 38 C.F.R. § 3.400 (o)(2). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Analysis Here, prior to October 28, 2015, the Veteran’s adjustment disorder with anxiety was evaluated at a 30-percent rating under DC 9440. From October 28, 2015, the Veteran’s adjustment disorder with anxiety is evaluated at a 50-percent rating. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the General Rating Formula for Mental Disorders, a 30-percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The next higher 50-percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70-percent rating is assigned when the psychiatric condition produces occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.). A maximum 100-percent rating is assigned when there is total occupational or social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether an increased evaluation is warranted. After reviewing all the evidence, the Board finds that the overall social and occupational impairment caused by the Veteran’s adjustment disorder with anxiety prior to October 28, 2015, most nearly approximates the criteria for a 30-percent rating, and a 50-percent rating thereafter. Prior to October 28, 2015 In an October 2013 VA examination report for posttraumatic stress disorder, the VA examiner diagnosed the Veteran with adjustment disorder with anxiety. The VA examiner noted symptoms of anxiety and chronic sleep impairment associated with the Veteran’s mental health condition. The VA examiner noted that the Veteran is capable of managing his financial affairs. In terms of his occupational and social functioning, the VA examiner noted that the Veteran has been married for 41 years and gets along well with his wife. The Veteran is very involved with his church and close to several people in his church. In fact, the Veteran reported that he is a pastor at this church and is responsible for sermons, visitation, and all the typical responsibilities of a pastor. The VA examiner noted that socially the Veteran does well, but did describe some periods of withdrawing socially and being slow to trust people. The Veteran’s main social difficulties, were best described as mild. Although the Veteran reported being a pastor, he noted it was a non-paying job. The VA examiner noted a solid work history. The VA examiner noted that occupationally the Veteran seemed to do well. With respect to the Veteran’s level of occupational and social impairment, the VA examiner opined that although the Veteran has a mental health condition, his symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. In a January 2015 VA examination report for mental disorders, the VA examiner noted symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. With respect to behavioral observations, the VA examiner noted the Veteran was orientated and causally dress with good grooming. He was polite and very cooperative. Speech and motor behaviors were within normal limits. Mood was reported as “anxious and then periodically withdrawn.” Affect was noted as full, congruent with topic. No psychotic symptoms were noted. The Veteran denied suicidal and homicidal ideation. The Veteran’s insight and judgment were noted as good. In terms of his occupational and social functioning, the VA examiner noted that the Veteran remains married to his wife of 42 years. The Veteran gets along with his three children and his wife. He continues to serve as a pastor of his church. He reported he continues to withdraw socially at times and is slow to trust people. The Veteran reported that he avoids malls and church conferences due to many people in attendance. In sum, the VA examiner noted that the Veteran described a slightly higher level of social difficulties than present at the time of his prior examination. The VA examiner noted that the Veteran is capable of managing his financial affairs. With respect to the Veteran’s level of occupational and social impairment, the VA examiner opined that the Veteran’s adjustment disorder with anxiety is productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Board acknowledges that based on the October 2013 VA examiner’s opinion which although noted a diagnosed mental health condition, ultimately opined that the Veteran’s symptoms are not severe enough to interfere with occupational or social function to require medication, taken alone, would be consistent with a non-compensable rating. Additionally, based on the January 2015 VA examiner’s opinion that the Veteran’s adjustment’s disorder with anxiety is productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, would be consistent with a 10-percent rating. However, based on consideration of the entire evidence of record as outlined above, the frequency, severity, and duration of the Veteran’s symptoms, which include anxiety, chronic sleep impairment, depressed mood, suspiciousness, and chronic sleep impairment, while not squarely within the symptomatology consistent with a 30-percent rating, more nearly approximates the criteria for a 30-percent rating. See 38 C.F.R. § 4.7. A 50-percent rating is not warranted as the Veteran did not exhibit symptoms such as or to include a flatten affect, circumstantial, circumlocutory or stereotype speech, panic attacks, which was shown to be more than weekly, difficulty understanding complex commands, impairment of his short or long-term memory, impaired judgment, disturbances of motivation and mood, impaired abstract thinking, or difficulty establishing and maintaining effective work and social relationships. Thus, the Veteran’s overall symptoms are not productive of social and occupational impairment with reduced reliability and productivity. Specifically, as reflected in the Veteran’s January 2015 examination report, the Veteran’s speech, appearance, and motor behaviors were within normal limits. Additionally, the Veteran maintains a good relationship with his wife and children, as well as members of his church, with no history of any issues. Given such, the Veteran’s symptoms do not meet the criteria for a 50-percent rating. In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule. However, as the preponderance of the evidence is against the award of a rating in excess of 30 percent prior to October 28, 2015, that doctrine is not applicable to this extent. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). From October 28, 2015 In an October 28, 2015 VA examination report, the VA examiner noted the Veteran’s mental health disorder is manifested by symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss and difficulty in establishing and maintaining effective work and social relationships. With respect to behavioral observations, the Veteran was neatly dressed with good grooming and hygiene. He was calm and cooperative. The Veteran’s thought process was goal-directed and logical. No suicidal or homicidal ideation was reported. The Veteran was fully oriented in all spheres. The Veteran’s memory and concentration were fair to good. The VA examiner noted that the Veteran is capable of managing his financial affairs. In terms of his occupational and social functioning, the Veteran reported that he is “on edge a lot” and takes it out on his wife. The Veteran reported he does spend time with his wife, but is apprehensive about crowds. With respect to the Veteran’s level of occupational and social impairment, the VA examiner opined that the Veteran’s adjustment disorder with anxiety is productive of occupational and social impairment with occasional decrease to work efficiency and intermittent periods of inability to perform occupational tasks. In a February 2017 VA examination for mental disorders, the VA examiner noted that the Veteran’s adjustment disorder with anxiety is manifested by symptoms of depressed mood anxiety, suspiciousness, chronic sleep impairment and disturbances of motivation or mood. The VA examiner noted that the Veteran is capable of managing his financial affairs. With respect to behavioral observations, the VA examiner noted the Veteran is oriented and professionally dressed with good grooming. He was polite and cooperative. Speech and motor behaviors are within normal limits. Mood is reported as depressed and irritable. Affect full, congruent with reported mood and topic. There were no psychotic symptoms (no delusions, hallucinations). The Veteran denied suicidal and homicidal ideation. In terms of his occupational and social functioning, the VA examiner noted the Veteran still remains married to his wife of almost 45 years. The Veteran reported overall good relationships with others at his church. The Veteran has not worked for pay since 2012 when he left his job as a substitute teacher. Since then, the Veteran has worked on a volunteer basis for his church, but that decreased significantly since April or May 2016. With respect to the Veteran’s level of occupational and social impairment, the VA examiner opined that the Veteran’s adjustment disorder with anxiety is productive of occupational and social impairment with reduced reliability and productivity. Based on the foregoing evidence, the Board finds that for the period from October 28, 2015, the Veteran’s adjustment disorder most nearly approximates the criteria for a 50-percent rating. Significantly, the February 2017 VA examiner opined that the Veteran’s adjustment disorder with anxiety is productive of occupational and social impairment with reduced reliability and productivity, which is consistent with a 50-percent rating. While the Veteran’s adjustment disorder with anxiety has caused a variety of psychiatric symptoms, from the 30-percent rating as well as the 50-percent rating, the Board finds that the Veteran’s disability more nearly approximates a 50-percent rating, where the evidence reflects that his overall social and occupational functioning is consistent with the 50 percent rating. Thus, based on consideration of the entire evidence of record as outlined above, the frequency, severity, and duration of the Veteran’s symptoms, while not squarely within the symptomatology consistent with a 50-percent rating, more nearly approximates the criteria for a 50-percent rating. See 38 C.F.R. § 4.7. In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule. However, as the preponderance of the evidence is against the award of a rating in excess of 50 percent after October 28, 2015, that doctrine is not applicable to this extent. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56. Entire Appeals Period A 70-percent rating is not warranted throughout the entire period on appeal as the Veteran did not exhibit any symptoms such as or to include suicidal ideation; illogical, obscure, or irrelevant speech; near continuous panic or depression affecting the ability to function independently; impaired impulse control, spatial disorientation; and neglect of personal appearance and hygiene, as reflected by the 70-percent rating criteria. In fact, the Veteran has consistently denied any suicidal or homicidal ideation. The VA examiners have consistently noted that the Veteran’s speech was clear and within normal limits, and that the Veteran was always well-groomed. The evidence is absent of any evidence of near continuous panic or depression affecting the ability to function independently; impaired impulse control, or spatial disorientation. Moreover, his overall social and occupational impairment is not found to be deficient in most areas. As here, the Veteran has been able to maintain his financial affairs, and continued to maintain relationships with his wife and children, as well as with members of his church. A maximum 100-percent rating is also not warranted as the Veteran did not exhibit symptoms of or such as grossly inappropriate behavior, persistent delusions or hallucinations, persistent danger of hurting himself or others, intermittent inability to perform daily living, disorientation to time living or place, memory loss of close relatives, own occupation or own name. Significantly, the aforementioned evidence reflects that there is no evidence of psychosis in the record. Throughout the entire record, the Veteran has consistently denied any suicidal or homicidal ideation, or any delusions or hallucinations. Although the Veteran reported that he gets angry easily, there is no evidence that the Veteran is an imminent threat to himself or others. The medical records do not show that the Veteran exhibited symptoms of grossly inappropriate behavior, persistent delusions or hallucinations, persistent danger of hurting himself or others, intermittent inability to perform daily living, disorientation to time living or place, memory loss of close relatives, own occupation or own name. Moreover, there is no evidence of total occupational and social impairment. Thus, as the Veteran has been able to maintain some social relationships, such as with his wife and children, and continues to volunteer at his church, the Veteran’s overall symptoms are not productive of total occupational and social impairment. The Board has also considered the Veteran’s lay statements regarding his adjustment disorder with anxiety symptoms. The Veteran’s statements are competent evidence as to the symptoms as this comes to him through his senses. Moreover, his statements are credible to the extent that they are consistent with the medical evidence of the record. However, his statements are not competent evidence as to a specific level of disability according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Evidence concerning the nature and extent of the Veteran’s adjustment disorder with anxiety has been provided by the medical personnel who have examined him at various times during the current appeal and who have rendered pertinent opinions in conjunction with the physical evaluations. The medical findings as provided in the examination reports and medical records directly address the criteria under which this type of disability is evaluated. The Board, therefore, finds the medical findings to be of greater probative value as to the current severity of the Veteran’s adjustment than his statements. Given such, the Board does not find that a rating of 70 or 100 percent, as the record stands, is warranted. In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule. However, as the preponderance of the evidence is against the award of a rating of 70 and 100 percent during the appeal period, that doctrine is not applicable to this extent. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56. Service Connection Condition of Kidneys The Veteran contends he is entitled to service connection for a kidney condition as secondary to his diabetes. Legal Principles and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either (a) proximately due to or the result of; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Duties to Notify and Assist With respect to the Veteran’s claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159 (c)(4). The Veteran was not afforded a VA examination with respect to his claim for service connection for conditions of kidneys and the Board finds that an examination is not warranted. A medical examination is necessary when there is (1) “competent evidence of a current disability or persistent or recurrent symptoms of a disability,” (2) evidence establishing an in-service “event, injury, or disease,” and (3) an “indication” that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2). Here, as discussed in more detail below, the Board finds the threshold requirement to determine whether a medical examination is warranted, that there is competent evidence of a current disability, has not been demonstrated as to the Veteran’s claim. Therefore, VA has no duty to obtain a medical examination in this regard. See Wells v. Principi, 326 F. 3d 1381 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512, 516 (2004). Consequently, the “low” threshold for purposes of triggering VA’s duty to provide an examination is not met. McLendon, 20 Vet. App. at 81. Based on the foregoing, the Board finds that the record as it stands includes adequate competent evidence to allow it to adjudicate the appeal, and no further action is necessary. See 38 C.F.R. § 3.159 (c) (2017). Analysis After review of the record, the evidence is against a finding that the Veteran has a condition of his kidneys. First, the Veteran’s service treatment records are silent for any treatment, complaint, or diagnosis of a kidney condition. Furthermore, in an October 2015 VA examination for diabetes, the VA examiner opined that the Veteran has microalbuminuria. The VA examiner contributes this condition to the Veteran’s hypertension and not a diabetes renal involvement. Specifically, the VA examiner explained that based on the Veteran’s low estimated glomerular filtration rate (EGFR) and in absence of proteinuria, the medical evidence is against a diagnosis of diabetes renal involvement, and that hypertension consequently is the likely culprit of the Veteran’s microalbuminuria. Further in a February 2017 VA examination report for diabetes, the VA examiner noted there is no evidence of renal disease. To the extent that the Veteran has offered his opinion that he has a diagnosis of a kidney condition, these statements appear to pertain to an internal medical process which extends beyond an immediately observable cause-and-effect relationship. Opinions of this type have been found to be beyond the competence of lay witnesses, as is the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). Matters of diagnosis and etiology are generally within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134 (1994). Thus, in the absence of evidence of a current kidney condition, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223.225 (1992); 38 C.F.R. § 3.385 (2008). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). The evidence must show that the Veteran currently has a disability for which benefits are being claimed. Without evidence of a kidney condition, the Board need not address the other elements of direct or secondary service connection. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application and the claim for service connection for conditions of the kidney must be denied. TDIU Legal Regulations and Principles A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). For a veteran to prevail on a claim for a TDIU, the record must reflect some factor, which takes this case outside the norm. The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran’s education, employment history, and vocational attainment. See Pederson v. McDonald, 27 Vet. App. 276, 281 (2015). Analysis In this case, in terms of whether the minimum schedular requirements for TDIU are met, prior to October 25, 2018, the Veteran is in receipt of a 30 percent rating for his adjustment disorder with anxiety, and a 50 percent rating thereafter; a 20 percent rating for diabetes; a 20 percent rating for diabetic peripheral neuropathy of the left upper extremity from October 18, 2016; a 20 percent rating for diabetic peripheral neuropathy of right upper extremity from October 18, 2016; a 10 percent rating for diabetic peripheral neuropathy, right lower extremity from August 31, 2016, and 20 percent thereafter; a 10 percent rating for diabetic peripheral neuropathy, left lower extremity from August 31, 2016, and 20 percent thereafter; and a 10 percent rating for varicocele left, post-operative. For the period prior to October 28, 2015, the Veteran’s combined rating is 60 percent, 70 percent from October 28, 2015 to October 17,2016, and 90 percent thereafter. Here, prior to October 28, 2015, because the Veteran did not have a rating of at least 40 percent and combined rating of at least 70 percent, the Veteran has not met the schedular requirements. For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16(b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to the Director of Compensation is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Factors to be considered include, but are not limited to, the veteran’s service-connected disabilities, employment history, and educational and vocational attainment. 38 C.F.R. § 4.16(b). For the period after October 28, 2015, because the Veteran has one disability ratable at 40 percent or more and a combined rating greater than 70 percent, the schedular requirements have been satisfied. The Veteran, in his November 2016 VA Form 21-8940, stated he has not worked full-time since 2012, when he resigned from his position as substitute teacher because this position was becoming too stressful. Additionally, the Veteran stated that his decision making as it related to students was impaired; and therefore, he was forced to resign or otherwise he would have been terminated. He noted that he does not do well with other people. In terms of educational history, the Veteran graduated from high school pre-military in 1963, completed his Bachelors of Science in Psychology in 1973 to 1974 (post military), and earned his Master’s degree in Guidance and Counseling in approximately 1976. In terms of employment history, during the Veteran’s service he chose to be a medic. Post military, the Veteran obtained job as a coordinator of the Veteran Affairs and remained with this employment for 2 years. He was promoted to a Veteran Benefits Counselor and then to Chief, he retired from this position after 25 years. In 2001, he started working as a substitute teacher for approximately 10 years. Since 2012, he reported that he volunteers as a Pastor for his church. Based on the evidence discussed below, the Board finds that throughout the appeal period, the evidence does not show that the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. Prior to October 28, 2015 In terms of the effect of his adjustment disorder with anxiety on his ability to obtaining and sustain employment, the Board notes that the October 2013 VA examiner opined that the Veteran’s mental health condition has shown minimal to no impairment on his ability to work. In a December 2014 counseling recorded narrative report, a VA counseling psychologist/vocational rehabilitation counselor noted that with respect of the Veteran’s diabetes he needs a job with regular work schedule to maintain good control of his blood sugar. Also, there are no limitations from retinopathy, or varicocele. The counselor noted that the Veteran cannot deal with very stressful situations due to his adjustment disorder with anxiety and prefers not to work around large groups of people. Ultimately, the counselor concluded that although the Veteran’s service-connected disabilities present a handicap to his ability to work, the Veteran’s health is stable and there is no evidence that he is unable to sustain full-time employment In the Veteran’s January 2015 VA examination report, the VA examiner opined that the Veteran’s adjustment disorder with anxiety is productive of occupational impairment that decreases work efficiency and ability to perform occupational tasks only during periods of significant stress. From October 28, 2015 In an October 2015 VA examination report, the VA examiner opined that the Veteran’s adjustment disorder with anxiety is productive of on occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks, although general functioning satisfactorily with normal behavior, self-care, and conversation. In an October 2015 VA examination report for eye conditions, the VA examiner opined that the Veteran’s diabetes and diabetes-related condition have no impact on the Veteran’s ability to work. Furthermore, the VA examiner opined that the Veteran’s diabetic peripheral neuropathy has no impact on the Veteran’s ability to work. In a February 2017 VA examination report for eye conditions, the VA examiner opined that the Veteran’s eye conditions do not impact his ability to work. The examiner noted that there is no impact on function and/or vision from cataracts. In a February 2017 VA examination report for mental disorders, the VA examiner opined that the Veteran’s adjustment disorder with anxiety is productive of occupational impairment with reduced reliability and productivity. The VA examiner also opined that the Veteran’s adjustment disorder with anxiety causes moderate impairment on the Veteran’s ability to obtain and maintain gainful employment. Specifically, the Veteran’s ability to work cooperatively and effectively with co-workers, supervisors, and the public is to be moderately impaired due to the Veteran’s adjustment disorder symptoms. In an June 2017 VA examination for eye conditions, the VA examiner opined that the Veteran’s eye conditions have no impact of his ability to work. In an associated June 2017 addendum medical opinion, the VA examiner further noted that the Veteran’s bilateral upper extremity neuropathy is considered mild and his bilateral lower extremity, sensory only diabetic peripheral polyneuropathy is moderate. The VA examiner opined that the Veteran’s peripheral polyneuropathy renders the Veteran unable to obtain and maintain gainful employment at a physical job. However, neither his diabetes nor his neuropathy would preclude a sedentary job consistent with his education and occupational experience. Therefore, the above reflects that throughout the appeal period, the Veteran’s service-connected disabilities have resulted in some and, at times, significant impairment in his ability to work, but there is no indication that his service-connected disabilities have prevented him from securing or maintaining gainful sedentary employment consistent with his education and occupational experience. Thus, the Board finds that a preponderance of the evidence suggests that he would not have been prevented from gainful employment. As such, the benefit-of- the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to a TDIU must be denied and referral for extraschedular consideration is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Bilateral Glaucoma With respect to the Veteran’s claim for bilateral glaucoma, to include as secondary to diabetes, further development is required. Although the Veteran was provided VA examinations for eye conditions in July 2016 and in June 2017 with an associated June 2017 medical opinion, the Board finds that the VA examiner’s medical opinions are inadequate for the following. First, the July 2016 VA examiner opined that there is no consensus agreement on a positive link between diabetes and glaucoma because most current literature denies causation. A simple broad one single conclusory statement, without any medical explanation, is not a rationale that is based on the sufficient facts and data of this case. For instance, the VA examiner did not reference any specific medical literature in the VA examination report although he generally refers to most current literature in his rationale. Thus, it is unclear what medical literature the VA examiner relied upon in formulating the medical opinion. Without an adequate rationale, the Board cannot ascertain how much probative value to give to the weight of the medical literature in support of the proposed medical opinion. Furthermore, there was no opinion provided on whether the Veteran’s bilateral glaucoma was aggravated by his diabetes. Given the lack of an adequate rationale and an incomplete medical opinion, a new examination and opinion are warranted. Second, in the June 2017 VA examination report, the VA examiner opined that the Veteran’s glaucoma is not related to his diabetes. However, no rationale was provided. Given such, this opinion has no probative value. Lastly, in the associated June 2017 medical opinion, the VA examiner opined that although the Veteran does have a diagnosis of glaucoma, there is no clinical evidence to support a relationship to a diagnosis of diabetes, noting that scientific knowledge does not support the onset of glaucoma related to diabetes. However, again, the Board finds that it is unclear what specific knowledge the VA examiner relied upon in formulating the medical opinion. Additionally, no opinion was provided on whether the Veteran’s bilateral glaucoma was aggravated by his diabetes. Given such, a remand for a new examination is warranted. The matter is REMANDED for the following action: 1. Schedule the VA examination with regard to his claim for bilateral glaucoma as secondary to service-connected diabetes. The examiner should respond to the following, after reviewing and considering all the Veteran’s pertinent lay and medical evidence: (a) Whether it is at least as likely as not (probability of at least 50 percent) that the Veteran’s bilateral glaucoma was caused by or incurred in service. (b) Whether it is at least as likely as not (probability of at least 50 percent) that the bilateral glaucoma is (a) proximately caused by or (b) aggravated by (permanently worsened beyond the normal progression) his service-connected diabetes. In offering this opinion, the examiner is instructed that the phase “caused by or result of” is insufficient to address the question of aggravation. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran’s statements as to the nature, severity, and frequency of her observable symptoms over time. Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel
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