Citation Nr: 1736659	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  11-17 248	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction and diabetic retinopathy.


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jessica O'Connell, Associate Counsel 

INTRODUCTION

The Veteran served on active duty from January 1970 to January 1974.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

The record before the Board consists of the Veteran's electronic records located within the Veterans Benefits Management System (VBMS) and Virtual VA.

In January 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record.

At his January 2016 hearing before the Board, the Veteran appears to have raised the issues of entitlement to service connection for hypertension, as secondary to diabetes mellitus, type II, and entitlement to increased disability ratings for bilateral upper extremity peripheral neuropathy.  The Veteran is advised that these statements do not meet the standards of an intent to file under 38 C.F.R. § 3.155(b) or those of a complete claim under 38 C.F.R. § 3.155(a).  The Veteran is informed that if he wishes to file claims for VA benefits, he must do so on the required form prescribed by the Secretary.


FINDINGS OF FACT

1.  Throughout the period of the appeal, the Veteran's diabetes mellitus, type II, has not required the medical regulation of activity.

2.  Throughout the period of the appeal, the Veteran's diabetic retinopathy has not resulted in incapacitating episodes, impaired visual acuity, impaired visual fields, or impaired muscle function.

3.  Throughout the period of the appeal, the Veteran's erectile dysfunction has been manifested by loss of erectile power; there is no evidence of a penile deformity.

4.  Beginning June 2, 2016, the competent and probative evidence demonstrates that the Veteran has voiding dysfunction secondary to diabetes mellitus, type II, requiring nighttime voiding approximately four times a night; there is no urinary leakage and he does not require the use of absorbent materials or appliances.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction and diabetic retinopathy have not meet met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.76a, Diagnostic Code 6006, 4.115b, Diagnostic Code 7522, 4.119, Diagnostic Code 7913 (2016).

2.  Beginning June 2, 2016, a separate 20 percent disability rating, but no higher, is warranted for voiding dysfunction secondary to diabetes mellitus, type II.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.310(a), 4.115a (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016).

VA's duty to notify was satisfied by letters dated September 2009 and April 2011.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The duty to assist the Veteran has also been satisfied in this case.  The RO has obtained the Veteran's service treatment records, VA treatment records, and identified private records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Moreover, the Veteran has been afforded several adequate VA examinations.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The Veteran has not identified any additional, existing evidence that could be obtained to substantiate his claim.  The Board is also unaware of any such evidence.  Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006).

Procedural History

In an October 2013 rating decision, the RO granted service connection for diabetes mellitus, type II, and assigned a 20 percent disability rating.  In a January 2004 rating decision, the RO denied service connection for vision problems secondary to diabetes mellitus, type II, because there was no evidence of a current ocular disability.  The Veteran did not file a Notice of Disagreement with those rating decisions or submit new and material evidence within one year of the notice of those decisions; therefore, they became final.

In September 2006, the Veteran filed a claim for an increased rating for diabetes mellitus, type II, and for service connection for bilateral upper and lower peripheral neuropathy.  In an April 2007 rating decision, the RO continued the 20 percent rating for diabetes mellitus, type II; granted service connection for right upper extremity peripheral neuropathy and assigned a 30 percent disability rating; granted service connection for left upper extremity peripheral neuropathy and assigned a 20 percent disability rating; granted service connection for right lower extremity peripheral neuropathy and assigned a 20 percent disability rating; granted service connection for left lower extremity peripheral neuropathy and assigned a 20 percent disability rating; and granted entitlement to special monthly compensation based on loss of use of a creative organ.  The Veteran did not file a Notice of Disagreement with that rating decision or submit new and material evidence within one year of the notice of that decision; therefore, the April 2007 rating decision became final.

In January 2008, the Veteran filed a claim for entitlement to a total disability rating based on individual unemployability (TDIU), which was predicated on, in pertinent part, his service-connected diabetes mellitus, type II, and bilateral upper and lower extremity peripheral neuropathy.  The RO construed that as a claim for an increased rating for diabetes mellitus, type II, and peripheral neuropathy, and in a July 2008 rating decision, the RO continued the previously assigned ratings.  In that rating decision, based on the Veteran's medical records and the results of a VA examination, the RO recharacterized the issue of diabetes mellitus, type II, to include diabetic retinopathy of the right eye and erectile dysfunction.  Significantly, in that rating decision the RO also granted entitlement to TDIU, effective January 4, 2008.  The Veteran did not file a Notice of Disagreement with that rating decision or submit new and material evidence within one year of the notice of that decision; therefore, the July 2008 rating decision became final.

In May 2009, the Veteran filed a claim for an increased rating for diabetes mellitus, type II.  In pertinent part, in a January 2010 decision the RO continued the previously assigned ratings for bilateral upper and lower extremity peripheral neuropathy, continued the level of special monthly compensation, and continued the 20 percent rating for diabetes mellitus, type II, with erectile dysfunction and diabetic retinopathy of the right eye.  In a March 2010 Notice of Disagreement, the Veteran only disagreed with the assigned rating for diabetes mellitus, type II, arguing that a higher rating was warranted because he took daily prescription medication, took insulin injections, regulated his diet, and that his physician had advised him to limit his physical activity.  The Veteran did not disagree with the disability ratings pertaining to his bilateral upper or lower peripheral neuropathy or the level of special monthly compensation.  

The Veteran perfected his appeal to the Board and in April 2016, the Board remanded his claim to provide him with a more recent VA examination to evaluate the severity of his diabetes mellitus, type II, diabetic retinopathy, and erectile dysfunction.  The Veteran underwent adequate examinations to evaluate the severity of these disabilities in June 2016, and his claim was thereafter readjudicated in a April 2017 Supplemental Statement of the Case.  Based on the foregoing, the Board finds that there has been substantial compliance with its April 2016 remand directives and that it may properly and fairly continue with adjudicating the Veteran's claim.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The Board notes that although an April 2017 rating decision increased the disability rating for his right upper extremity peripheral neuropathy, and that the April 2017 Supplemental Statement of the Case readjudicated the issues of entitlement to increased ratings for bilateral upper and lower peripheral neuropathy, these issues were never appealed following the January 2010 rating decision and are not currently before the Board.  If the Veteran feels these disabilities have worsened, he is free to submit an increased rating claim on the specific form required by the Secretary.

Legal Criteria

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2016).  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016).  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 (2016). 

Diabetes Mellitus

The Veteran seeks an increased rating for his diabetes mellitus, type II, which has been rated 20 percent disabling throughout the period of the appeal under 38 C.F.R. § 4.119, Diagnostic Code 7913.

Pursuant to Diagnostic Code 7913, a 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and 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, Diagnostic Code 7913.

"Regulation of activities" is defined in Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities"  Medical evidence is required to support the "regulation of activities" criterion.  See Camacho, 21 Vet. App. at 364; 38 C.F.R. § 4.119, Diagnostic Code 7913.

A note that follows the rating criteria for diabetes mellitus states the following: Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation.  Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913.  38 C.F.R. § 4.119, Note (1).

Retinopathy

Retinopathy is evaluated on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher rating.  38 C.F.R. § 4.79, Diagnostic Codes 6000-6009.  The evidence does not show, nor has the Veteran asserted, that he has had incapacitating episodes related to his diabetic retinopathy during the rating period; and the rating criteria pertaining to such are thus not for application in the present appeal.  Id.

The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function.  38 C.F.R. § 4.75(a).

Central visual acuity is generally evaluated on the basis of corrected distance vision with central fixation.  38 C.F.R. § 4.76(b) (2016).  Impairment of central visual acuity is evaluated from 0 percent to 100 percent based on the degree of the resulting impairment of visual acuity.  38 C.F.R. § 4.79, Diagnostic Codes 6061-6066 (2016).  

With regard to visual field impairment, a 10 percent disability rating is assigned for unilateral loss of the temporal half of the visual field; unilateral or bilateral loss of the nasal half of the visual field; unilateral loss of the inferior half of the visual field; unilateral or bilateral loss of the superior half of the visual field; bilateral concentric contraction of the visual field between 46 and 60 degrees; or unilateral concentric contraction of the visual field between 16 and 60 degrees.  38 C.F.R. § 4.79, Diagnostic Code 6080.  A 30 percent disability rating is assigned for homonymous hemianopsia; bilateral loss of the temporal half of the visual field; bilateral loss of the inferior half of the visual field; bilateral concentric contraction of the visual field between 31 and 45 degrees; or unilateral concentric contraction of the visual field to 5 degrees.  Id.  A 50 percent disability rating is assigned for bilateral concentric contraction of the visual field between 16 and 30 degrees.  Id.  A 70 percent disability rating is assigned for bilateral concentric contraction of the visual field between 6 and 15 degrees.  Id.  A maximum 100 percent disability rating is assigned for bilateral concentric contraction of the visual field to 5 degrees.  Id.

With regard to impairment of muscle function, disability ratings are assigned based on the degree of diplopia (double vision).  38 C.F.R. § 4.79, Diagnostic Codes 6090, 6091 (2016).

Erectile Dysfunction

Diagnostic Code 7522 provides that deformity of the penis with loss of erectile power is rated as 20 percent disabling.  38 C.F.R. § 4.115b.  Thus, two distinct criteria are required for a compensable rating: loss of erectile power and deformity of the penis.  VA regulation provides that in every instance where the Rating Schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met.  38 C.F.R. § 4.31 (2016).

Diagnostic Code 7522 also directs the adjudicator to review the claim to determine whether special monthly compensation under 38 C.F.R. § 3.350 is warranted.  38 C.F.R. § 4.115b.  

Voiding Dysfunction

Bladder disabilities are rated based on the criteria pertinent to voiding dysfunction, to include urinary leakage, urinary frequency, or obstructive voiding. 

Urinary frequency with daytime voiding intervals less than one hour, or; awakening to void five or more times per night warrants a 40 percent rating.  Daytime voiding intervals between one and two hours, or; awakening to void three to four times per night warrants a 20 percent rating.  Daytime voiding intervals between two and three hours, or; awakening to void two times per night warrants a 10 percent rating.  38 C.F.R. § 4.115a (2016).


Factual Background and Analysis

Although all the evidence has been reviewed, the Board is not required to discuss each piece of evidence in detail.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  As noted above, the Veteran's appeal is limited to whether separate instability ratings are warranted for his left and right knee disabilities.  Therefore, the Board's analysis herein will focus on what the most relevant and salient evidence shows, or fails to show, with respect to the Veteran's claims.

In his March 2010 Notice of Disagreement, the Veteran indicated he took daily prescription medication, insulin injections and that he regulated his diet to manage his diabetes mellitus, type II.  He also indicated that his doctor had advised him to limit his physical activity.  In his June 2011 VA Form 9 (Substantive Appeal), the Veteran indicated that while the medication he took for his diabetes remained the same, if a restricted diet and prescribed regime of walking only did not improve his condition that his medications would increase.

At his January 2016 Travel Board hearing, the Veteran testified that his physician has not regulated his activities because she is aware that he is unable to do anything physical due to disabilities of his hands, legs, and knees.  He indicated his physician knows that he does not do any physical work or exercise because he essentially lived a sedentary lifestyle.  The Veteran's representative clarified that the Veteran has diabetic peripheral neuropathy of his bilateral upper and lower extremities and the Board notes that the service connection is in effect for these disabilities.  The Veteran also testified that his physician has been warning him about his potassium and creatine levels and that she instructed him to stop taking Motrin or any medication for his blood pressure.  In support of this statement, the Veteran submitted a June 2010 laboratory report which reflects that his creatine level was slightly elevated; the physician recommended that the Veteran avoid taking nonsteroidal anti-inflammatory drugs (NSAIDs) such as Advil, Motrin, and Aleve.  With regard to ocular symptoms, the Veteran testified that his eyes have not changed but that he was told by physicians that he should seek medical treatment if he starts to see spots.  He indicated he noticed he did have little spots sometimes, "like an unemptied spot in [his] vision," but that he was used to it.  The Veteran also stated he did not notice any retinopathy symptoms but stated his wife told him that when he drives he moves his face to one side so he could see correctly.  He felt that perhaps part of his field of vision was impaired and that tilting his head allowed him to see better.  While the Veteran testified that his blood sugar levels were not always stable and indicated that when his blood sugar was too high he tried to adjust it by taking insulin; when his blood sugar was low he drank orange juice or ate candy to bring it back up.  He denied seeking any emergency medical treatment or ever being hospitalized due to his diabetes.  He did, however, indicate that he was hospitalized previously due to issues with his gallbladder and that his diabetes complicated his recovery, requiring a prolonged hospital stay; however, the Board notes that service connection for gallbladder removal, as secondary to diabetes mellitus, type II, was denied in a September 2010 unappealed rating decision.  

VA examinations dated April 2008, October 2009, and June 2016 do not reflect that the Veteran has had to restrict any of his activities on account of his diabetes.  Similarly, a review of the Veteran's VA treatment records do not reflect that any of his physicians have instructed him to regulate any of his activities due to his diabetes.  At December 2009 and February 2010 atA diabetes metabolic appointments, the Veteran indicated he had been performing hard labor with his son recently.  In October 2011, the Veteran indicated he had been more active lately and was involved in cutting down trees; the examiner noted that the Veteran's increase in activity resulted in lower blood sugar readings.  Throughout the appeal period, the Veteran also regularly reported he was walking for exercise.  In October 2012, the Veteran reported walking one and a half miles a day five days a week.  At no point in time, during the appeal period and otherwise, does the medical evidence reflect that physicians have instructed the Veteran to regulate his activities due to his diabetes.  In fact, on several occasions the Veteran has been encouraged to begin or continue with an exercise program and to increase his activity level.  In September 2014, the Veteran indicated he was walking six miles a day and he complained that his feet hurt after walking four miles; the examiner instructed the Veteran to participate in nonweight-bearing exercise, such as swimming or biking, in lieu of walking to avoid foot pain.  The June 2016 VA examiner found that it was less likely than not (less than 50 percent probability) that the Veteran's diabetes required regulation of activities, reasoning that the Veteran's diabetes was controlled with Insulin and oral medications, treatment records did not require regulation of activities, and the Veteran has never been hospitalized for diabetic ketoacidosis or hypoglycemic reactions.

Based on the foregoing, the Board finds that a rating for diabetes mellitus, type II, in excess of 20 percent is not warranted because there is no medical evidence that the Veteran's diabetes mellitus, type II, has required medical regulation of activities at any time throughout the period of the appeal.  See 38 C.F.R. § 4.119, Diagnostic Code 7913.  As such, the criteria for a rating in excess of 20 percent have not been met.  In reaching this decision, the Board recognizes that a May 2009 VA treatment record documents that the Veteran's diabetes mellitus, type II, was worsening, as evidenced by increased A1C levels.  The Board also recognizes that the Veteran submitted a June 2010 laboratory report that reflects he had a slightly elevated level of creatine.  However, the Board is bound by the regulations governing the rating of disabilities and emphasizes that there must be a basis in fact for an assigned rating.  See 38 C.F.R. § 3.102 (2016).  The regulation governing the rating of diabetes mellitus does not consider increased A1C levels or creatine levels and, therefore, this evidence is irrelevant as to whether a schedular rating in excess of 20 percent is warranted.  The Board also acknowledges that at the June 2016 VA examination the examiner indicated that the Veteran had diabetic nephropathy; however, laboratory findings were inconsistent with that diagnosis and in a March 2017 opinion, the examiner indicated that the diabetic nephropathy noted on the June 2016 examination was an error (specifically, one of the laboratory findings was incorrectly documented at that examination with a misplaced decimal).

In reaching this decision, the Board has considered the Veteran's lay statements and finds that his statements regarding the symptoms he experiences are competent evidence because this requires only personal knowledge.  See 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  While he has alleged that regulation of activities is necessary to control his diabetes, medical evidence is required to support the "regulation of activities" criterion.  See Camacho, 21 Vet. App. at 364; 38 C.F.R. § 4.119, Diagnostic Code 7913.  As a lay person, the Veteran has not demonstrated that he has the required specialized education, training, or experience to make such a medical determination and his statements in this regard are not competent evidence to identify a specific level of disability and relate it to the appropriate diagnostic code.  See 38 C.F.R. § 3.159(a).  

Next, the Board turns to whether a separate compensable rating is warranted for the Veteran's claims of visual impairment due to his diabetes.  

In March 2006, an optometrist diagnosed mild non-proliferative diabetic retinopathy of the right eye and found no retinopathy in the left eye.  

Subsequent to that diagnosis, the Veteran underwent several VA optometry routine eye examinations in January 2009, February 2010, April 2011, May 2012, March 2014, and April 2015.  There was no evidence of retinopathy at any of these examinations and at each of these examinations the Veteran's visual acuity was better than 20/40 bilaterally.  In January 2009 and February 2010 the Veteran denied any fluctuation in his vision, and in April 2011 the Veteran reported dry eyes but had no other visual complaints.  In May 2012, the Veteran acknowledged floaters every once in a while and indicated his vision was stable.  At the March 2014 examination the Veteran denied visual complaints aside from difficulty with nighttime driving, and in April 2015, the Veteran denied visual complaints, including flashes of light, floaters, or curtain veil over vision.

At a June 2016 VA eye examination, the examiner diagnosed bilateral presbyopia, bilateral non-proliferative diabetic retinopathy, bilateral incipient cataracts, and bilateral suspect glaucoma.  The examiner indicated that the bilateral non-proliferative diabetic retinopathy was "barely noticeable" during the examination in both eyes.  At that examination, the Veteran indicated he was unaware of diabetic retinopathy or cataracts at his last eye examination.  The retinopathy was currently minimal with scattered dot hemorrhages.  The Veteran reported occasional dry eyes with no treatment noted and denied pain or other issues.  On examination, corrected and uncorrected distance and near vision was 20/40 or better bilaterally.  Pupils were round and reactive to light and there was no afferent pupillary defect present.  The Veteran did not have anatomical loss, light perception only, extremely poor vision, or blindness of either eye.  There was no evidence of corneal irregularity that results in severe irregular astigmatism and no diplopia (double vision).  Visual fields were within normal limits.  The examiner noted that the Veteran's ocular diagnoses did not decrease his visual acuity or cause other visual impairment.

As noted above, retinopathy is rated based on incapacitating episodes or on evaluation of visual impairment.  The latter considers impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function.  38 C.F.R. § 4.75(a).  Given that there is no evidence of incapacitating episodes or impairment of muscle function, the Board will turn to whether a compensable rating is warranted based on impairment of visual acuity or visual field.  38 C.F.R. § 4.79, Diagnostic Codes 6000-6009.

Regarding impairment of visual acuity, throughout the appeal period, the Veteran's vision has consistently been 20/40 or better, there is no evidence he has no more than light perception in either eye, and there is no evidence of anatomical loss of either eye.  Therefore, a compensable rating based on impairment of central visual acuity is not warranted.  See 38 C.F.R. § 4.49, Diagnostic Codes 6161-6066.  There is also no evidence whatsoever of impairment of visual fields.  Id., Diagnostic Code 6080.  The Board has considered other diagnostic criteria pertinent to eye diseases; however, none are applicable in this case.  Id., Diagnostic Codes 6010-6037.  Accordingly, a separate compensable disability rating for diabetic retinopathy is not warranted.

The Board acknowledges that the Veteran has received diagnoses of bilateral glaucoma, cataracts, and presbyopia and that there is no evidence these additional disabilities are due to his diabetes mellitus, type II, or due to his diabetic retinopathy.  However, to remand the Veteran's claim in order to obtain this information would only result in unnecessarily imposing additional burden on VA with no benefit flowing to the Veteran.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).  The rating criteria pertinent to these disabilities contemplate incapacitating episodes and visual impairment; therefore, even assuming that these additional ocular disabilities are service-connected, which they are not, the Board has already considered them in the context of evaluating whether a higher rating is warranted for retinopathy and this still does not result in a compensable rating.  

Consideration has also been given as to whether a separate compensable rating is warranted for erectile dysfunction.  As explained above, in order to obtain a compensable rating for this disability, the Veteran's erectile dysfunction must be manifested by loss of erectile power and deformity of the penis.  38 C.F.R. § 4.115b, Diagnostic Code 7522.  There is no evidence that the Veteran has any deformity of the penis.  There are numerous VA treatment records and examination reports associated with the claims file, none of which document any deformity of the penis or contain any suggestion that there may be deformity of the penis.  The Veteran has never contended that he has deformity of the penis.  It is reasonable to find that if he did feel he had such deformity he would have stated such given that he has been informed several times, to include in the most recent April 2017 Supplemental Statement of the Case, that a compensable disability rating is not warranted absent evidence of such deformity.  Thus, the Board concludes that the Veteran has no deformity of the penis and, as such, a compensable schedular rating is not warranted.  The Board notes that the Veteran has been granted special monthly compensation for loss of use of a creative organ for the entire period for which service connection has been in effect for erectile dysfunction, and therefore, the Veteran has not gone uncompensated for this disability.

The Board acknowledges that the June 2016 VA examiner concluded the Veteran had voiding dysfunction due to his diabetes mellitus, type II.  Voiding dysfunction did not cause urinary leakage or require the use of absorbent materials or an appliance.  The Veteran reported nighttime voiding around four times a night and indicated his urinary stream had weakened.  Based on the foregoing, the Board finds that beginning June 2, 2016, a separate 20 percent disability rating, but no higher, is warranted based on urinary frequency manifested by awakening three to four times a night to void.  See 38 C.F.R. §§ 3.310(a), 4.115a.  The Board has considered whether rating the Veteran's bladder disability under the criteria for urinary leakage or obstructive voiding would provide him with a higher rating; however, there is no evidence of urinary leakage and obstructive voiding does not require the use of catheterization, which is required for a disability rating in excess of 20 percent.  See 38 C.F.R. § 4.115a.

In reaching the foregoing decisions, the Board has also considered whether staged ratings would be appropriate.  While there may have been day-to-day fluctuations of the Veteran's diabetes mellitus, type II, with retinopathy, erectile dysfunction, and voiding dysfunction, the evidence of record shows no distinct time period during which the Veteran's symptoms have varied to such an extent that ratings greater than those continued or assigned herein would be warranted under any diagnostic code.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).
 
Consideration has also been given as to whether manifestations of the Veteran's disabilities on appeal present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The Board acknowledges that the Veteran has experienced elevated A1C and creatine levels and that he receives diabetic foot care, symptoms which are not contemplated by the schedular rating criteria.  However, the Board notes that entitlement to TDIU has been in effect since January 4, 2008, well before the period currently on appeal.  The symptoms described immediately above, which have been identified as not being contemplated by the schedular rating criteria, are specifically contemplated by the allowance of TDIU.  To provide the Veteran with an extraschedular rating for his diabetes mellitus, type II, with erectile dysfunction, diabetic right eye retinopathy, and voiding dysfunction during this same period would be tantamount to impermissible pyramiding of ratings.  See 38 C.F.R. § 4.14 (2016).  Therefore, the criteria for referral for an extraschedular rating have not been met.  See 38 C.F.R. §§ 3.321(b)(1), 4.14.

In reaching the above determinations, the Board has considered the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against a higher or separate disability ratings, it is not applicable.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 





	(CONTINUED ON NEXT PAGE)


ORDER

Throughout the period of the appeal, entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, with diabetic retinopathy and erectile dysfunction is denied.

Beginning June 2, 2016, entitlement to a separate 20 percent disability rating, but no higher, for voiding dysfunction secondary to diabetes mellitus, type II, is granted, subject to the laws and regulations governing the payment of monetary benefits.




____________________________________________
MICHAEL MARTIN 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Advertisements

Leave a Reply

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

WordPress.com Logo

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

Google+ photo

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

Twitter picture

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

Facebook photo

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

w

Connecting to %s