Citation Nr: 18123968
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 11-30 672
DATE:	August 3, 2018
ORDER
Entitlement to an initial rating higher than 20 percent for diabetes mellitus is denied.
Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.
FINDINGS OF FACT
1.  Throughout the appeal, the Veteran’s diabetes mellitus is manifested by the need for insulin and a restricted diet, but it does not require regulation of activities.  
2.  The Veteran’s service-connected disabilities are diabetes mellitus, type 1 (rated 20 percent); benign prostatic hypertrophy (rated 20 percent); right foot plantar fasciitis (rated 0 percent); left foot plantar fasciitis (rated 0 percent); a fracture of the distal long finger (rated 0 percent); a scar, status post laceration of the left middle finger tip (rated 0 percent); and onychomycosis (rated 0 percent).  His service-connected disabilities do not preclude substantially gainful employment.
CONCLUSIONS OF LAW
1. The criteria for an initial rating higher than 20 percent for diabetes mellitus have not been met.  38 U.S.C.A §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017).  
2.  The criteria for a TDIU have not been met.  38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017).  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the Air Force from January 1990 to January 2010.  
This matter is before the Board of Veterans’ Appeals (Board) on appeal of March 2010 and January 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  
The March 2010 RO decision granted service connection and a 20 percent rating for diabetes mellitus (diabetes mellitus, type 1), effective February 1, 2010.  
The January 2011 RO decision denied service connection for an enlarged prostate.  
The case was later transferred to the Regional Office in Columbia, South Carolina.  
In December 2015, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge.  
In February 2016, the Board found that the issue of entitlement to a TDIU was raised during the Veteran’s previously appealed increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board remanded the issues of entitlement to an initial rating higher than 20 percent for diabetes mellitus; entitlement to service connection for an enlarged prostate; and entitlement to a TDIU, for further development.  
An April 2018 RO decision granted service connection and a 20 percent rating for benign prostatic hypertrophy, effective February 1, 2010.  Therefore, the issue of entitlement to service connection for an enlarged prostate is no longer on appeal.  
1. Diabetes mellitus
Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  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 (2017).  
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2017).  
The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009).  
In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”).
The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  
As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996).  
In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  
The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”).  
The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2017).  It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017).
Pursuant to Diagnostic Code 7913, a 20 percent rating is warranted 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, restricted diet, and regulation of activities.  A 60 percent rating is warranted for diabetes mellitus requiring 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 for diabetes mellitus requiring 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. 
Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913.  38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1).  
In order to be entitled to the next higher evaluation of 40 percent, the evidence must show that the Veteran’s diabetes requires insulin, restricted diet, and regulation of activity.  See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007).  
The Veteran contends that his diabetes mellitus is worse than contemplated by his currently assigned disability rating and that a higher rating is therefore warranted for that service-connected disability.  He specifically maintains that his diabetes mellitus has progressed to the point that he can no longer detect his low blood sugars, and that he suffers from large fluctuations of his blood sugars, with uncontrollable high and low blood sugars, which cannot be explained by his diet, insulin dosage, and his general health.  He reports that his work capacity and production has decreased.  The Veteran’s representative reports that the Veteran’s blood sugars are constantly changing, and that he uses an insulin pump, and that extraschedular consideration is necessary for those reasons.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  
A November 2009 VA general medical examination report includes a notation that the Veteran’s claims file was not reviewed, but that his private medical file was reviewed.  The Veteran reported that he was originally treated as having diabetes mellitus, type 2, but that after three months, it was determined that he was insulin dependent, and that he had a definite diagnosis of diabetes mellitus, type 1.  It was noted that the Veteran was diagnosed with diabetes mellitus, type 1, in 1997.  The Veteran indicated that his symptoms were typical, with polyuria, polyphagia, and polydipsia, and that he had an elevated blood sugar reading of above 400.  The Veteran stated that he had not had ketoacidosis, but that he had hypoglycemic episodes approximately once a week.  He maintained that he was on a restricted diet.  He related that his weight had been stable for the previous year and that he was seen by a diabetic care provider approximately every three months.  
The Veteran reported that he had no complications from is diabetes mellitus, including coronary artery disease; congestive heart failure; a stroke; retinopathy; nephropathy; peripheral vascular disease; peripheral neuropathy; bladder impairment; bowel impairment; or erectile dysfunction.  It was noted that the Veteran did not have hypertension and that he had a totally negative smoking history.  The examiner indicated that the Veteran had no exercise intolerance and that his METs were 10 plus.  It was noted that the Veteran did have risk factors of hypercholesterolemia.  
The examiner reported that the Veteran took medications, including an insulin pump, with 45 units per day, and Actos to assist in his sugar control.  The examiner stated that the Veteran’s diabetic condition did not affect his work or his activities of daily living, with the exception of some limitation on his travel, which had been imposed by his command in the Air Force, rather than by his own personal concerns.  
The diagnoses included diabetes mellitus, type 1, with no retinopathy; no cardiovascular disease; no coronary artery disease; no nephropathy; no peripheral vascular disease; no skin changes; no erectile dysfunction; and no other complications.  
A June 2016 VA diabetes mellitus examination report includes a notation that the Veteran’s claims file was reviewed.  The Veteran reported that his last hemoglobin A1C test was a 6.3 or 6.7, with in the previous six months.  He indicated that his hemoglobin A1C had never been much higher than 7 since he started using an insulin pump.  The Veteran indicated that he underwent yearly eye examinations and that he did not have diabetes retinopathy.  He stated that his microalbumin was elevated at 38 in 2011, but that it was back down to a 7 in 2012.  The Veteran denied that he had numbness, tingling, and burning in his feet.  It was noted that the Veteran also denied that he had known diabetic nephropathy.  The Veteran indicated that his main symptoms were blood sugar fluctuation and a decrease in an ability to detect his blood sugars.  
The examiner reported that the Veteran’s diabetes mellitus was managed by a restricted diet, and that he required insulin and an insulin pump.  The examiner maintained that the Veteran did not require regulation of his activities as part of the medical management of his diabetes mellitus.  The examiner stated that the Veteran visited his diabetic care provider for ketoacidosis less than two times per month, and for hypoglycemia less than two times per month.  It was noted that the Veteran had not been hospitalized for episodes of ketoacidosis or for hypoglycemic reactions over the past twelve months.  The examiner reported that the Veteran did not have progressive, unintentional weight loss and loss of strength attributable to his diabetes mellitus.  The examiner also related that the Veteran had no recognized complications of diabetes mellitus, such as diabetic peripheral neuropathy; diabetic nephropathy or renal dysfunction caused by diabetes mellitus; or diabetic retinopathy.  The examiner further indicated that the Veteran did not have conditions of erectile dysfunction; cardiac conditions; hypertension; peripheral vascular disease; a stroke; skin conditions; or eye conditions, that were at least as likely as not (at least 50 percent probability) due to his diabetes mellitus, and/or were permanently aggravated by his diabetes mellitus.  The examiner reported that the Veteran’s fasting plasma glucose (FPG) test was 126 mg/dl on two or more occasions, and that his A1C was 6.5 percent or greater on two or more occasions.  It was noted that the two-hour plasm glucose was 200 mg/dl on the glucose tolerance test, and that the random plasma glucose was 200 mg/dl with classic symptoms of hypoglycemia.  
The diagnoses were diabetes mellitus, type 1, and hypoglycemic-associated autonomic failure.  The examiner indicated that the Veteran had no other pertinent physical findings, complications, conditions, or signs or symptoms, related to those diagnosed disorders.  The examiner reported that the Veteran’s diabetes mellitus condition impacted his ability to work in that his hypoglycemia interrupted his work day, and his requirement that meals be on time reduced his work schedule flexibility.  The examiner maintained that the Veteran’s hypoglycemia-associated autonomic failure was a progression of his service-connected diabetes mellitus.  
An April 2018 VA diabetes mellitus examination report includes a notation that the Veteran’s claims file was reviewed.  The examiner reported that the Veteran’s diabetes mellitus required insulin of one injection per day, as well as an insulin pump.  The examiner stated that the Veteran did not require the regulation of activities as part of his management of diabetes mellitus.  The examiner indicated that the Veteran visited his diabetic care provider for episodes of ketoacidosis and for hypoglycemia less than two times per month.  It was noted that the Veteran had not required hospitalization for ketoacidosis or for hypoglycemic reactions over the past twelve months.  The examiner reported that the Veteran did not have progressive unintentional weight loss and loss of strength attributable to his diabetes mellitus.  The examiner further indicated that the Veteran did not have any additional recognized complications of his diabetes mellitus, and that his diabetes mellitus had not at least as likely as not (at least a 50 percent probability caused or permanently aggravated any conditions.  It was noted that the Veteran had a A1C of 6.5 percent or greater on two or more occasions in August 2017 and November 2017.  The examiner reported that the Veteran’s most recent A1C was 7.1 in November 2017, and that his most recent fasting glucose was 141 in November 2017. 
The diagnosis was diabetes mellitus, “type 2.”  The examiner reported that the Veteran did not have any pertinent physical findings, complications, conditions, or signs or symptoms, related to his diabetes mellitus.  The examiner indicated that the Veteran’s diabetes mellitus did not impact his ability to work.  The examiner commented that the Veteran’s blood sugars were persistently labile, despite diligent management of his diet, subcutaneous insulin, and his insulin pump.  It was noted that the Veteran was followed by endocrinology at a VA facility.  
Recent VA treatment reports, dated through March 2018, show that the Veteran was treated for diabetes mellitus, with hypoglycemia, and hypoglycemia unawareness, on numerous occasions.  
The Board observes that the medical evidence shows that the Veteran’s diabetes mellitus results in no more than the need for insulin and a restricted diet, and, thus, no more than a 20 percent rating is warranted under Diagnostic Code 7913.  The Board notes that the most recent April 2018 VA diabetes mellitus examination report, as well as the June 2016 VA diabetes mellitus examination report, specifically indicate that the Veteran did not have regulation of his activities due to his service-connected diabetes mellitus.  Additionally, the November 2009 VA general medical examination report notes that the Veteran had no exercise intolerance, and that his diabetic condition did not affect his work or his activities of daily living.  It was noted that while the Veteran was in the Air Force, he did have limitations on his travel imposed by his command.  The Board notes that recent VA treatment records also do not refer to any regulation of activities due to diabetes mellitus. The Board also observes that there is also no evidence of any hospitalization for ketoacidosis or episodes of hypoglycemic reactions. 
The evidence is against a finding that the Veteran’s diabetes mellitus is indicative of the need for insulin, a restricted diet, and regulation of activities, as required for a 40 percent rating under Diagnostic Code 7913.  There is simply no recent medical evidence indicating that the Veteran requires regulation of his activities due to his diabetes mellitus.  The April 2018 and June 2016 VA diabetes mellitus examination reports specifically indicates that Veteran’s activities were not restricted.  
As this is an initial rating case, consideration has been given to “staged ratings” (different percentage ratings for different periods of time, since the effective date of service connection, based on the facts found).  Fenderson, 12 Vet. App. at 119.  However, staged ratings are not indicated in the present case, as the Board finds that the Veteran’s diabetes mellitus has been no more than 20 percent disabling throughout the appeal period.  
As the preponderance of the evidence is against the claim for an initial rating higher than 20 percent for diabetes mellitus, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  
The Board notes that the Veteran’s representative has asserted that extraschedular consideration is necessary because the Veteran’s blood sugars are constantly changing, and he uses an insulin pump, which is not listed in the schedular criteria.  The Board observes that in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 
The Board finds that the rating criteria contemplate the Veteran’s diabetes mellitus, including his periods of hypoglycemia and his need to use an insulin pump, and that the rating criteria are therefore adequate to evaluate the Veteran’s diabetes mellitus, and referral for consideration of extraschedular ratings is not warranted.
2. entitlement to a total disability rating based on individual unemployability (TDIU)
A TDIU rating 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 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).  Where these percentage requirements are not met, entitlement to the benefit on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history.  38 C.F.R. §§ 3.321(b), 4.16(b).  The Board does not have the authority to assign an extraschedular TDIU rating in the first instance, although appropriate cases must be referred to the Under Secretary for Benefits or the Director of the VA Compensation and Pension Service for such extraschedular consideration.  Bowling v. Principi, 15 Vet. App. 1 (2001).  
In determining whether a veteran is entitled to a TDIU rating, neither non-service-connected disabilities or advancing age may be considered.  38 C.F.R. § 4.19.
The Veteran essentially contends that his service-connected disabilities prevent gainful employment, warranting a TDIU.  See Scott, 789 F.3d at 1375.  
The Veteran’s current service-connected disabilities are diabetes mellitus, type 1 (rated 20 percent); benign prostatic hypertrophy (rated 20 percent); right foot plantar fasciitis (rated 0 percent); left foot plantar fasciitis (rated 0 percent); a fracture of the distal long finger (rated 0 percent); a scar, status post laceration of the left middle finger tip (rated 0 percent); and onychomycosis (rated 0 percent).  The combined disability rating is 40 percent.  The Veteran therefore does not satisfy the percentage rating standards for a TDIU rating under 38 C.F.R. § 4.16(a).  
The Board does not have authority to assign a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b).  Bowling, supra.  Moreover, in the instant case, the Board sees no exceptional or unusual circumstances that would warrant referral of the case to the appropriate VA official for consideration of a TDIU rating on an extraschedular basis.  In this regard, the evidence does not demonstrate that the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation.  The Board notes that the Veteran appears to be gainfully employed at the present time.  Additionally, the Board observes that a June 2016 VA diabetes mellitus examination report notes that the Veteran’s diabetes mellitus condition impacted his ability to work in that his hypoglycemia interrupted his work day, and his requirement that meals be on time reduced his work schedule flexibility, but there was no indication that he was unable to follow a substantially gainful occupation.  Further, an April 2018 VA diabetes mellitus examination report indicates that the Veteran’s service-connected diabetes mellitus did not impact his ability to work, and an April 2018 VA male reproductive system conditions examination report also indicates that the Veteran’s service-connected benign prostatic hypertrophy did not impact his ability to work.  There is also no evidence that the Veteran’s other service-connected disabilities of right foot plantar fasciitis; left foot plantar fasciitis; a fracture of the distal long finger; a scar, status post laceration of the left middle finger tip; and onychomycosis, prevent him from securing and maintaining substantially gainful employment.  
Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities do not individually or collectively preclude him from securing and maintaining substantially gainful employment at any time during the pendency of the appeal.  See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the 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 it is an adjudicative determination properly made by the Board or the RO). 
(Continued on the next page)
 
Accordingly, the Board finds that the most probative evidence of record does not show that referral of the claim to the Director, Compensation Service, for extraschedular consideration is warranted.  Therefore, the claim is denied.
 
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. D. Regan, Counsel 

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