Citation Nr: 1803741	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  07-09 934A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II.

2.  Entitlement to service connection for hypertension, including as secondary to the type II diabetes mellitus.

3.  Entitlement to service connection for peripheral neuropathy, also including as secondary to the type II diabetes mellitus.

4.  Entitlement to service connection for a bilateral (left and right) eye disability, including as well as secondary to the type II diabetes mellitus.

5.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Barbara R. Lincoln, Agent


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel


INTRODUCTION

The Veteran had active military service from May 1966 to April 1969.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2006 rating decision by a special processing unit ("Tiger Team") at the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, denied the Veteran's claims of entitlement to service connection for diabetes mellitus, peripheral neuropathy, hypertension, and a bilateral eye disability.  Later, due to his actual state of residence, jurisdiction was transferred to the RO in Houston, Texas, and that office certified the appeal to the Board.

In August 2010, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing.  A transcript of the proceeding is of record.

This case was last before the Board in April 2016, when the claims were remanded for further development.  On remand, however, the Agency of Original Jurisdiction (AOJ) continued to deny the claims, as reflected in a February 2017 Supplemental Statement of the Case (SSOC), and therefore since has returned these claims to the Board for further appellate review.

There was compliance, certainly the acceptable substantial compliance, with the April 2016 remand directives - in turn permitting the Board to proceed with its adjudication of these claims.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).


FINDINGS OF FACT

1.  The Veteran's diabetes mellitus is not shown to have incepted during his service, or manifested to a compensable degree within a year of his discharge from service, or to be otherwise related or attributable to any disease, injury, or incident of his service.

2.  The most probative medical and other evidence of record also does not establish that his hypertension, peripheral neuropathy, and bilateral eye disability incepted during his service, or manifested to a compensable degree within a year of his discharge from service, or to be otherwise related or attributable to any disease, injury, or incident of his service - including caused or aggravated by a service-connected disability.

3.  He does not meet the schedular criteria for a TDIU, and this case is not so exceptional or unusual as to render impractical the application of these regular schedular standards.



CONCLUSIONS OF LAW

1.  The criteria are not met for entitlement to service connection for type II diabetes mellitus.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).

2.  The criteria also are not met for entitlement to service connection for hypertension, peripheral neuropathy and a bilateral eye disability, including as secondary to the type II diabetes mellitus.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017).

3.  As well, the criteria are not met for a TDIU, including for referral of this claim for extra-schedular consideration.  38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, which is necessary to substantiate the claim.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).


In this case, VA's duty to notify was satisfied by way of a letter sent to the Veteran in July 2005, so prior to initially adjudicating his claims in February 2006, therefore in the preferred sequence.  The letter informed him of the evidence required to substantiate the claims and of his and VA's respective responsibilities in obtaining this necessary supporting evidence.  As specifically concerning his claims of entitlement to service connection, the letter also importantly advised him of how a "downstream" disability rating and effective date are determined once service connection is granted.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Moreover, the claims since have been readjudicated in a March 2007 Statement of the Case (SOC), as well as in more recent Supplemental SOCs (SSOCs).  See Prickett v. Nicholson, 20 Vet. App. 370 (2006).  He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was inadequate.  Thus, the Board finds that VA's duty to notify has been satisfied.

Regarding the duty to assist, the Board sees that the claims file contains the Veteran's service treatment records (STRs), pertinent post-service medical records, as well as his written statements and hearing testimony.  Neither he nor his representative has identified, nor does the record otherwise indicate, any other evidence relevant to these claims that has not been obtained and that is obtainable.  Furthermore, he was afforded VA compensation examinations and opinions were obtained in response, including as concerning the cause (etiology) of these claimed disabilities - particularly in terms of their purported relationship or correlation with his military service.  These examination reports, certainly when considered with the other evidence in the file, so collectively, are adequate for deciding his claims that are at issue in this appeal.  38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007).  No further development of his claims is required.


II.  Legal Criteria for Service Connection

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  To establish entitlement to service connection, there must be competent and credible evidence showing (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain "chronic diseases", including diabetes mellitus, hypertension, and peripheral neuropathy, may be presumed to have been incurred in service if they manifest to a degree of 10 percent or more (i.e., to a compensable degree) within one year of the Veteran's separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  This presumption is rebuttable by probative evidence to the contrary, however.  Id.

When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question.  Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b).  There is no "nexus" requirement for compensation for a chronic disease that was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.  Walker, 708 F.3d at 1336.  But, according to Walker, this exception only pertains to the chronic diseases specifically identified in 38 C.F.R. § 3.309(a).


Service connection also may be granted on a secondary basis for a condition that is not directly caused by the Veteran's service, but nonetheless secondarily caused or being aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b).  To prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities.  Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998); Allen v. Brown, 7 Vet. App. 439 (1995),

Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.  38 C.F.R. § 3.102.

The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its competency and credibility to, in turn, determine its ultimate probative value in relation to other relevant evidence.  38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a).  A layperson is competent to report on the onset and continuity of his current symptomatology.  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.  Jandreau v. Nicholson, 492 F.3d 1372 (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, supra.

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons or bases for rejecting evidence favorable to the Veteran.

III.  Type II (Adult-Onset) Diabetes Mellitus

The Veteran's post-service treatment records confirm he has received the required diagnosis of diabetes mellitus, type II.  So there is competent medical evidence of this claimed disability.  See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim).

However, as already alluded to, there still must be competent and credible evidence also of a relationship between this disability and his military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993); Maggitt v. West, 202 F.3d 1370, 1375. (Fed. Cir. 2000); D'Amico v. West, .209 F.3d 122, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546,548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).  He readily acknowledges that his diabetes mellitus was not diagnosed during his time in service or even within one year of his discharge, much less shown to be disabling to the minimally-required degree of at least 
10-percent disabling, so it may not be presumed to have been incurred during his service, at least not under the provisions of 38 U.S.C. §§ 1101, 1112, 1113 and 38 C.F.R. §§ 3.307 and 3.309(a).  

In his initial May 2005 claim, and again in his April 2007 Substantive Appeal, the Veteran asserted that entitlement to service connection for diabetes nevertheless was warranted, instead, on the basis that it is presumptively associated with his exposure to herbicides-like the dioxin in Agent Orange-during his service.  However, in his August 2010 Travel Board hearing testimony, he clarified that his only foreign service was in Germany, not elsewhere (namely, not in Vietnam, Thailand or Korea) where VA in certain instances has conceded Agent Orange was sprayed.  Therefore, further consideration of whether any of his claimed disabilities, specifically including diabetes, are the consequence of herbicide exposure is not required inasmuch as he, himself, acknowledges there was no such exposure.  38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e).

That notwithstanding, the Veteran asserts that, although his diabetes mellitus admittedly was not initially diagnosed until many years following his service, he showed early (i.e., prodromal) signs of it even prior to entering service, and his pre-existing condition was aggravated by his military service-specifically, due to the food he was provided during service.  See August 2010 Board Hearing Transcript.  Turning back to the alternative possibility that his diabetes mellitus was either directly or otherwise presumptively incurred during his service or, if preexisting, aggravated by his service beyond the condition's natural progression, the report of his May 1966 military induction examination includes results of laboratory testing indicating that his glucose tolerance test (GTT) was within normal limits, albeit with possible renal glycosuria.  Nevertheless, no actual diabetes diagnosis was noted and he was found qualified for service.  His November 1968 separation exam includes a self-reported history of sugar or albumin in his urine and the examiner indicated the sugar in the Veteran's urine was probably due to renal glycosuria, and that his GTT was negative.

While the Veteran admittedly was not first diagnosed with diabetes mellitus until after service, the fact remains that relevant symptoms were noted upon his induction and separation from active military service.  And, furthermore, his military examiners did not rule out diabetes.  Rather, while noting symptoms potentially relevant to diabetes, they couched their assessments in equivocal terms as symptoms possibly or probably instead attributable to renal glycosuria.  As there was no opinion of record interpreting these test results in terms of whether they indicate early-state or prodromal diabetes and whether there was a chronic or permanent worsening of any pre-existing condition beyond its natural progression while he was in service, the Board remanded this claim in January 2011 to afford the Veteran a VA compensation examination for a medical opinion to assist in making this important determination.

The Veteran subsequently had a VA diabetes examination in March 2011.  The examiner reviewed the claims file, but noted there were no STRs available for review.  Therefore, the Board later found the March 2011 compensation examination inadequate, in turn requiring remand to correct this deficiency.  See Barr v. Nicholson, 2 Vet. App. 303, 311 (2007).

The Veteran resultantly was afforded another VA compensation examination in July 2013, after which the examiner opined that "[t]here is no 'clear and unmistakable evidence' in available records that the Veteran's diabetes mellitus is in any way related to his military service."  However, that statement failed to address the likelihood that his diabetes was initiated during his service or within the one-year presumptive period after the conclusion of his service.  As a result, the Board again remanded this claim for still further comment.

In October 2014, a supplemental opinion was provided indicating there is no objective documentation diagnosing diabetes before 1999, 30 years after the Veteran's discharge from service, and thus, it is unlucky that his diabetes initially manifested during his service or to a compensable degree of at least 10-percent disabling within one year of his separation from service.  But that opinion did not address his allegations that his diet during service may have contributed to his diabetes-that is, the eventual diagnosis.  Therefore, the Board again remanded this claim for yet another opinion.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding inadequate a VA examiner's opinion that relied exclusively on the absence of contemporaneous medical evidence and had "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim of service connection could be proven").

In September 2016, a supplemental opinion was provided.  After an extensive review of the medical evidence of record, the VA examiner concluded that it is less likely than not that the Veteran's diabetes is related or attributable to his active military service, including especially to his diet during service.  The examiner first addressed that, while the Veteran was noted to have "possible renal glycosuria" at the time of his enlistment, subsequent GTT failed to show any abnormality in fasting glucose or impaired glucose tolerance.  Following review of competent medical literature, which was referenced in the examination report, the examiner noted that sugar in the urine, in the presence of normal blood glucose, is suggestive of a renal defect in proximal tubule reabsorption.  The examiner explained there are numerous causes for this, including genetic mutations, multiple myeloma, heavy metal exposure, and use of some medications.  The examiner added that, prior to separation, the Veteran had two urinalyses, where one showed "light to moderate" urinary glucose, and the other was normal.  As a result, the examiner concluded that there is no evidence supporting a worsening of the Veteran's renal glycosuria during his military service, because the urinary analysis obtained during his induction GTT was rated as 4+ (indicating large amount of urinary glucose) and there was less urinary glucose found in the separation urinary analysis.  The examiner finished by noting there was no objective evidence that the Veteran had developed impaired glucose tolerance or diabetes in service or within one year of his discharge from service (i.e., during the presumptive period).

Regarding the Veteran's contentions that his diet during his active military service-specifically, "potatoes, milk, a lot of stuff"-led to his eventual diagnosis of type II diabetes mellitus, the examiner discussed findings from competent medical literature that was similarly referenced in the examination report.  Initially, the examiner acknowledged that medical literature shows there is an increased risk of diabetes developing in patients who consume red meat, processed meat, and sugar-sweetened beverages, versus consuming a diet high in fruits, vegetables, nuts, whole grains, and olive oil.  However, the examiner indicated that diet has not been identified as the most important factor, or the only factor, in the prevention of diabetes.  Nonetheless, the examiner stated that, while dietary intake is a risk factor for developing diabetes mellitus, the Veteran has numerous risk factors for the development of type II diabetes mellitus, including: family history, ethnicity, obesity, tobacco use, hypertension, metabolic syndrome, and likely hyperuricemia (history of gout).  The examiner indicated that, while the Veteran's weight remained in a healthy range during service-as reflected in his body mass index (BMI) at military enlistment (BMI=23) and separation (BMI=25)-between military separation and his eventual diabetes diagnosis in 2001, his weight increased into the obese range (BMI=34) prior to the diabetes mellitus diagnosis.  Consequently, the examiner surmised that it is doubtful that the Veteran made the appropriate lifestyle modifications, including consuming a healthy diet and moderate exercise, during the 30 years after military separation to decrease his risk of eventually developing diabetes.

Those VA examination reports and consequent medical opinions, certainly in combination, so in the aggregate, were thorough and adequate and provide a sound basis upon which to decide this claim.  Together these examinations and opinions have the proper factual foundation and predicate.  See Reonal v. Brown, 5 Vet. App. 458 (1993).  The examiners considered the relevant history of the Veteran's diabetes mellitus, including the lay evidence of record, performed a physical examination, and provided explanatory rationale supporting their opinions.  The opinions, therefore, are entitled to a lot of probative weight.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  This is especially true in comparison to the Veteran's lay assertions to the contrary, particularly since type II diabetes mellitus is not a simple condition, rather, complex, including as concerning its origins and even the notion that it was aggravated during or on account of the Veteran' service.  See King v. Shinseki, 700 F.3d 1339, 1345   (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).


For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim of entitlement to service connection for type II diabetes mellitus.  The Veteran was eventually diagnosed with this condition over 30 years after his separation from service, and, although that, alone, is not reason enough to deny his claim, there also has not been the required attribution of this condition to his service.  38 C.F.R. § 3.303(d).  See also See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder).  Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

All said, the Veteran's type II diabetes mellitus has not been attributed to his active military service by a competent and credible medical opinion or by evidence of a continuity of symptomatology.  He is competent to report symptoms that he perceives through his own senses, but these reports must be weighed against the medical evidence of record.  See Layno v. Brown, 6 Vet. App. at 469.  While he has attempted to establish the required nexus through his personal lay assertions, he is not competent to offer an opinion on the etiology of his type II diabetes mellitus because, as mentioned, of its medical complexity.  Determining the origins of this type of condition requires specialized training for a determination as to diagnosis and causation and, consequently, falls outside the realm of common knowledge of a layperson susceptible to lay opinions on etiology.  Accordingly, he is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and his active service.  See Jandreau, supra.

As the preponderance of the evidence is against finding that the Veteran's type II diabetes mellitus is etiologically related to his active military service, to include his diet during service, the benefit-of-the-doubt rule is inapplicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

IV.  Secondary Service Connection Claims

As already mentioned, service connection also may be granted on a secondary basis for a condition that is proximately due to, the result of, or being aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

The Veteran is additionally claiming entitlement to service connection for hypertension, peripheral neuropathy, and a bilateral eye disability, primarily on the premise these additional conditions are secondary to his type II diabetes mellitus.  He has not asserted, nor does the record otherwise reflect, that these additionally-claimed conditions first manifested during his service, within a year of his discharge, or are otherwise related or attributable to his service.  It has only been claimed that these disabilities are secondary to his type II diabetes mellitus.  Accordingly, as he does not contend these disabilities are directly related to his service, or even presumptively related, and because the record similarly does not reasonably raise these theories of direct or presumptive incurrence, the Board instead will address only whether he is entitled to service connection for these disabilities on a secondary basis.  See Robinson v. Mansfield, 21 Vet. App. 545, 552-56 (2008) (concluding "that the Board is not required sua sponte to raise and reject 'all possible' theories of entitlement in order to render a valid opinion" and "commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record"), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir.2009) (stating that "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory").

The findings set forth earlier in this decision reflect that the Veteran is not entitled to service connection for type II diabetes mellitus.  He has not established the required association between his diabetes and service.  Thus, as service connection has not been established for the underlying diabetes, there necessarily is no factual or legal basis upon which to award service connection for disabilities that are claimed to be secondary to this disability that, itself, is not service connected.  See 38 C.F.R. § 3.310.  It follows that the preponderance of the evidence is against these additional claims, so the benefit-of-the-doubt rule does not apply, and these additional claims (like the underlying claim for diabetes) must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

V.  TDIU

In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In making this determination, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Consideration may be given to his level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

If the schedular rating is less than total, meaning less than 100 percent, a TDIU may be assigned if the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 C.F.R. § 4.16(a).  Disabilities resulting from common etiology and those affecting a single body system or both upper or lower extremities are considered one disability for purposes of determining whether these threshold minimum percentage requirements are met.  Id.  But even if the Veteran does not meet these threshold minimum percentage rating requirements, he can still receive a TDIU, albeit instead on a special extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16(b), if it is shown he is indeed unemployable owing to his service-connected disabilities.  In that circumstance, however, the Board is precluded from granting the TDIU in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for this initial consideration.  See Barringer v. Peake, 22 Vet. App. 242 (2008).  This does not, however, preclude the Board from determining whether this special consideration is warranted.  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

As it now stands, the Veteran has established his entitlement to service connection for tinnitus with an assigned 10 percent evaluation as of May 31, 2005.  There is no higher schedular rating for tinnitus.  See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  Since this is his only service-connected disability, he has not met the schedular criteria for a TDIU at any point during the period on appeal because he does not have a single disability rated at 60 percent or more and the combined rating for his service-connected disabilities is not 70 percent or more.  He also has not shown this case should be referred to extra-schedular consideration under the special provisions of 38 C.F.R. § 4.16(b).  There simply is not the suggestion of an exceptional or unusual circumstance rendering impractical application of the regular schedular standards.  Indeed, to the contrary, the preponderance of the evidence is against any notion that he is or has been unable to obtain or maintain substantially gainful employment owing to his service-connected tinnitus.  The evidence and various medical opinions of record simply do not indicate that his service-connected tinnitus has any functional impact on his ability to work in a substantially gainful (versus just marginal) capacity.  Accordingly, the benefit of the doubt doctrine is not for application, and referral for extraschedular consideration is not required.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

The claim of entitlement to service connection for type II diabetes mellitus is denied.

The claims of entitlement to service connection for hypertension, peripheral neuropathy, and a bilateral eye disability, including as secondary to the type II diabetes mellitus, also are denied.

As well, the claim of entitlement to a TDIU is denied.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs