Citation Nr: 1648522	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  10-33 726	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to an initial rating in excess of 20 percent for diabetes mellitus with erectile dysfunction.


REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Ashley Castillo, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1964 to June 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  Jurisdiction was subsequently transferred to the Newark, New Jersey RO.

In December 2012, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.

In March 2013 and April 2014, the Board remanded the Veteran's claim for further evidentiary development.  A review of the record reflects substantial compliance with the Board's Remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The VA Appeals Management Center (AMC) continued the previous denial in an October 2016 supplemental statement of the case (SSOC).  

In May 2012, the Veteran submitted a claim for diabetic peripheral neuropathy as secondary to diabetes mellitus.  In April 2014, the Board took jurisdiction of this claim as it was part and particle to the then pending increased rating claim for diabetes mellitus.  At that time, the Board characterized the issue as entitlement to a separate compensable rating for diabetic peripheral neuropathy.  In October 2016, the RO issued a rating decision granting service connection for peripheral neuropathy of the lower left and right extremities and assigned 10 percent disability ratings, separately both effective January 4, 2013.  As the Veteran has not appealed either the evaluation or effective date assigned to these disabilities, the issue of entitlement to a separate compensable rating for diabetic peripheral neuropathy is not before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).




FINDING OF FACT

The Veteran's diabetes mellitus requires the use of insulin and a restricted diet, but does not require regulation of activities.  The Veteran does not have penile deformity.  


CONCLUSION OF LAW

The criteria for an increased rating in excess of 20 percent for diabetes mellitus, type II, have not been met.  38 U.S.C.A. § 1155, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.27, 4.119, Diagnostic Code 7913 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The Veteran's claim for an increased disability rating is a "downstream" issue, in that it arose from an initial grant of service connection.  Prior to the June 2009 rating decision, the RO issued a letter in January 2009 that advised the Veteran of the evidence necessary to substantiate a claim for service connection, the Veteran's and VA's respective obligations with regard to obtaining evidence, and the process by which disability ratings and effective dates are assigned.  

Importantly, where, as here, service connection has been granted and an initial rating and effective date has been assigned, the claim for service connection has been more than substantiated and proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  See Dingess v. Nicholson, 19 Vet. App. 473, 490-91; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

Regarding the duty to assist, VA obtained the Veteran's post-service VA treatment records and private medical records in furtherance of his claim.  Additionally, the Veteran was afforded VA examinations in March 2009 and May 2012. 

As indicated above, the claim was remanded in March 2013 and April 2014 to obtain updated VA treatment records and a VA addendum opinion as to the severity of the Veteran's diabetes mellitus.

VA treatment records were updated and associated with the record.  Additionally, the Veteran was afforded a VA examination in September 2015 and a VA medical opinion was obtained in February 2016 as to the severity of the Veteran's diabetes mellitus.  The Board finds that the VA examinations reports and VA medical opinion, taken as a whole, obtained in this case are adequate, as they are predicated on private and VA medical records contained in the claims file and the clinical findings were responsive to the rating criteria.  The VA physicians considered all of the pertinent evidence of record, including the contentions of the Veteran, and provided complete rationales for the opinions stated.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  The Board concludes that there has been substantial compliance with the March 2013 and April 2014 Board Remand directives, and no further development in this regard is necessary.  See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999).  

During the December 2012 Board hearing, the undersigned explained the issue on appeal and asked questions to suggest the submission of evidence that may have been overlooked.  These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist.  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).

The Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.

II.  Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4.  The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.  Where there is a question as to which of two ratings should 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.

When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Here, the Veteran contends that his diabetes mellitus, type II, is more severe than the assigned 20 percent disability rating.  

The Veteran's diabetes mellitus, type II, is evaluated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. 

Under Diagnostic Code 7913, a 20 percent rating is assigned when the diabetes requires the use of insulin or oral hypoglycemic agent, and a restricted diet.  A 40 percent rating is warranted for diabetes that requires insulin, a restricted diet, and regulation of activities.  A 60 percent rating is warranted for diabetes that requires 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 when diabetes requires 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.

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) (2015).  

In December 2008, the Veteran's VA treating physician stated that his diabetes mellitus was controlled with insulin and noted that he plays tennis twice weekly and discussed increasing his tennis activities to five days per week and regulating his diet.  See VA treatment record dated December 2008. 

In a December 2008 private treatment record, the Veteran reported that he has been unemployed for one month.  He stated that he has worked in sales and the pressure regulator industry for many years.  He also stated that he is currently looking for a position in product management.  

In an August 2009 statement, Dr. A.A. Shah stated that while regular exercise is beneficial for the management of the Veteran's disabilities, including diabetes mellitus, it was recommended that he avoid strenuous activities due to his diabetes.  Moreover, Dr. A.A. Shah encouraged the Veteran to seek alternate forms of exercising, like swimming.  This was reiterated in a later, undated statement that was received in August 2010.

The Veteran was afforded a VA examination in March 2009.  He reported that his diabetes mellitus is treated with insulin and a restricted diet.  The examiner stated that the Veteran does not visit his diabetic care provider for episodes of ketoacidosis and hypoglycemia.  He denied any hospitalization for ketoacidosis or hypoglycemic reactions.  The examiner indicated that the Veteran does not require regulation of activities due to his diabetes mellitus.  The examiner diagnosed diabetes mellitus and erectile dysfunction as secondary to diabetes mellitus.  

Private treatment records, from Dr. A.A. Shah, dated from March 2009 through July 2011 include the Veteran's continued treatment for his diabetes mellitus with insulin and a restricted diet.  On a few occasions the Veteran reported that he experienced one or two episodes of hypoglycemia; the treating physician regulated his medication.  See, e.g., June 2010 and January 2011.

The Veteran was afforded a VA examination in May 2012.  He reported that his diabetes mellitus is treated with insulin and a restricted diet.  The examiner stated that the Veteran visits his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month.  He denied any hospitalization for ketoacidosis or hypoglycemic reactions.  The examiner indicated that the Veteran does not require regulation of activities due to his diabetes mellitus.  The VA examiner opined that Veteran's diabetic peripheral neuropathy and erectile dysfunction are a complication of the Veteran's service-connected diabetes mellitus.  The examiner concluded that the Veteran's diabetes mellitus do not impact his ability to work.  

In an August 2012 statement, the Veteran contended that his physical activities are restricted.  He indicated that his private physician, Dr. A.A. Shah, initially recommended swimming because it is a low impact exercise.  Thereafter, he asserts that he was experiencing hypoglycemic episodes; therefore, his physician limited his activities again, to which he can only walk on a treadmill.  Thus, his diabetes mellitus warrants a 40 percent disability rating. 

In October 2012 and May 2013 VA treatment reports, the Veteran had complaints of recurrent hypoglycemia: medication was adjusted to avoid hypoglycemia episodes.

In a May 2013 statement, Dr. Birnaum, noted that the Veteran needed "restrictive activity so [he] doesn't develop sores of feet due to his neuropathy." 

VA treatment records dated in October 2013, April 2014, and June 2014, and private hospital reports dated in May 2015 and June 2015 show that the Veteran continues treatment for his diabetes mellitus with insulin and a restricted diet.  Moreover, during the April 2014 VA treatment visit, the Veteran reported that he was experiencing hypoglycemia and his medication was adjusted. 

The Veteran was afforded a VA examination in September 2015.  He reported that his diabetes mellitus is treated with insulin.  The Veteran stated that his diabetes mellitus is not regulated by a diet; however, he watches what he eats.  The examiner stated that the Veteran visits his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month.  He denied any hospitalization for ketoacidosis or hypoglycemic reactions.  The examiner indicated that the Veteran does not require regulation of activities due to his diabetes mellitus.  The Veteran indicated that he plays golf; however, he quit golfing for a few months due to his lung cancer, he has resumed golfing and walks for exercise.  The VA examiner opined that Veteran's peripheral neuropathy and erectile dysfunction are complications of his diabetes mellitus.  The examiner reviewed the Veteran's claims file and opined that the Veteran's diabetes mellitus doed not impact his ability work or impact his ability to perform physical and sedentary type occupation.  The VA examiner reasoned that the Veteran is independent with his daily activities, as he drives himself to daily activities and medical appointments. 

In a May 2015 VA treatment record, the Veteran reported that he had a hypoglycemia episode.  His diabetes is controlled with insulin.  He reported that he plays golf twice a week and walks his dog. 

In a February 2016 VA medical opinion, a VA physician reviewed the claims file and opined that the Veteran's diabetes do not require regulation of physical activities.  The VA physician indicated that he reviewed Dr. A.A. Shah statement and also cited to the Veteran's statement that he made during the September 2015 VA examination that he continues to play golf and walks the dog for exercise.  Moreover, the VA physician cited to medical literature showing that patients who are prescribed medication for their diabetes benefit from mild to moderate exercise such as walking and swimming; however, the physician noted that exercise is within reasonable limits and is not for all diabetic patients.  The VA physician cited to other medical literature indicating that all vigorous exercise should be "avoided by all diabetics and not just this [V]eteran,"such as hiking, jogging, and bicycling more than 14 mile per hour.  The VA physician commented on Dr. A.A. Shah statement and stated "[t]his statement did not imply restriction in activity.  In fact it is merely a recommendation for all diabetics to follow in order to prevent the development of ketosis from strenuous or vigorous exercise." 

An August 2016 VA treatment report shows that the Veteran continues treatment for his diabetes mellitus with insulin and a restricted diet. 

The Board finds that a rating in excess of 20 percent for diabetes mellitus is not warranted.  The medical evidence demonstrates that the Veteran's diabetes mellitus has been treated with a restricted diet and insulin.  

The Board finds that a higher rating, 40 percent, is not warranted.  In this regard, the Board notes that to warrant a higher rating the evidence must show diabetes mellitus requiring insulin, restricted diet, and regulation of activities.  Here, the Board finds that the evidence of record does not establish that the Veteran's diabetes requires regulation of activities. 

The March 2009, May 2012, September 2015, and February 2016 VA physician's reviewed the Veteran's claims file and all agreed that the Veteran's diabetes mellitus does not require regulation of activities.  Particularly, the September 2015 and February 2016 noted that the Veteran continues to partake in activities such as golfing and walking his dog.  The Board finds that March 2009, May 2012, September 2015, and February 2016 VA opinions are probative as to whether the Veteran's diabetes requires regulation of activities, because the VA physicians reviewed the claims file, Veteran's statements, and the medical evidence of record.   

The Board acknowledges that while Dr. A.A. Shah's August 2009 and August 2010 statements recommended that the Veteran avoid strenuous activities, the medical evidence of record shows that the Veteran continued to engage in physical activities.  Specifically, the Veteran reported that he walks the dog and plays golf, except for a few months due to his lung cancer.  Additionally, Dr. A.A. Shah encouraged the Veteran to partake in other types of physical activities such as swimming.  Furthermore, several VA examiners agreed that the Veteran's diabetes mellitus did not require him to regulate activities at any time during the appellate period.  Furthermore, the Board finds probative the February 2016 opinion that concluded that the Veteran's diabetes mellitus does not require regulation of physical activities.  The February 2016 VA physician explained his rationale and cited to medical literature.  Moreover, the Veteran's VA and private treatment records documented the Veteran's treatment plan for his diabetes mellitus and did not find that his diabetes required regulation of activities.  Thus, notwithstanding Dr. Shah's recommendations against strenuous activities, the medical evidence of record does not establish that the Veteran's diabetes requires regulation of activities.  See Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007) (noting that medical evidence is required to support the "regulation of activities" criterion for the 40, 60, and 100 percent ratings under diagnosis 7913).  

Similarly, the Board finds that Dr. Birnaum's May 2013 recommendation that the Veteran regulate his activities does not satisfy the regulation of activities criterion in Diagnostic Code 7913.  To that end, Dr. Birnaum did not recommended that the Veteran regulate activities on account of his diabetes mellitus, but rather to avoid incurring sores on his feet.  As such, Dr. Birnaum is irrelevant to the severity of the Veteran's diabetes mellitus and carries no probative value.

In the presence of affirmative medical evidence that the Veteran's diabetes mellitus does not require the regulation of activities, the next higher rating, 40 percent, is not warranted.

The Board also finds that a 60 percent disability is not warranted.  To warrant a 60 percent rating the evidence must show diabetes mellitus requiring insulin, restricted diet, regulation of activities, and episodes of hypoglycemia and/or ketoacidosis requiring hospitalizations per year or twice a month visits to a diabetic care providers, plus complications that would not be compensable if separately evaluated.  As indicated above, the Board found that there was not evidence that the Veteran's diabetes required regulation of activities.  Moreover, while he is shown to have episodes of hypoglycemia and/or ketoacidosis, he has never been hospitalized for such nor had complications that would not be compensable if separately evaluated.  

The Board finds that these facts are consistent with the 20 percent rating currently assigned for diabetes mellitus and that a higher rating, in excess of 20 percent, has not been shown.  

To the extent that the Veteran claims that his activities have been limited due to his diabetes, the Veteran is certainly competent to report the symptoms of his diabetes and their effects on his occupation and activities of daily living.  However, the United States Court of Appeals for Veterans Claims (Court) has held that medical evidence is required to show that occupational and recreational activities have been restricted for purposes of Diagnostic Code 7913.  See Camacho, 21 Vet. App. at 360.  To this end, the objective medical evidence reflects that there has been no regulation of activities at any time throughout the appeal period.  Although, the Veteran contends that his activities have been regulated, they have not been regulated as required by the diagnostic code for diabetes mellitus.  The evidence shows that throughout the appeal period the Veteran has continued to golf, walk on the treadmill, walk his dog, and recommend to swim.  Although there were a few months that the Veteran was advised not to golf, this recommendation was based on his lung cancer and not his diabetes mellitus.  Therefore, the Board finds that the Veteran's statement concerning his limited activities is of minimal probative value and is outweighed by the March 2009, May 2012, September 2015, and February 2016 VA physician.  See 38 C.F.R. § 3.159(a)(1) (2015) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).

Pursuant to Note 1 under Diagnostic Code 7913, the Board must assign separate ratings for any compensable complications of the Veteran's service-connected diabetes mellitus, type II.  

The May 2012 and September 2015 VA examiners indicated that peripheral neuropathy of the bilateral extremities and erectile dysfunction is related to his service-connected diabetes mellitus.  The Veteran is in receipt of separate evaluations for peripheral neuropathy of the bilateral extremities.  Other than loss of erectile power, there is no deformity of the penis and a separate compensable evaluation is not warranted.  Therefore, the Board finds that the evidence does not support additional, separate compensable disability ratings for complications of the service-connected diabetes mellitus.

Accordingly, the Veteran's symptoms of the diabetes mellitus, type II, most nearly approximate the criteria for a 20 percent rating under Diagnostic Code 7913 and a higher rating is not warranted.  The appeal of this issue is denied.  See 38 U.S.C.A. §§ 1155, 5107(b); Camacho, 21 Vet. App. at 360; 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913.

III.  Additional Considerations

Consideration has been given regarding whether the schedular rating is inadequate for this disability, requiring that the RO refer a claim to the Chief Benefits Director or the Director of the Compensation and Pension Service for consideration of extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2015).

Here, the rating criteria specifically address the Veteran's service-connected diabetes mellitus.  As indicated above, the May 2012 and September 2015 VA examination reports and treatment records noted the Veteran's treatment of his diabetes mellitus and complaints thereof.  Crucially, his signs and symptoms, and their resulting impairment, are contemplated by the rating schedule.  Thus, the Board finds that the Veteran's disability picture is contemplated by the rating schedule.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).  Accordingly, a referral for extraschedular consideration is not warranted because his diabetes mellitus is contemplated by the rating schedule.

Under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  However, there are no symptoms caused by a service-connected disability that have not been attributed to and accounted for by a specific service-connected disability.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed to the combined effect of multiple conditions.
Additionally, if the claimant or the record reasonably raises the question of whether the veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a TDIU as a result of that disability is warranted.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  

Here, the Veteran has reported that he currently is unemployed.  He has indicated that he has worked in sales for many years and is attempting to obtain employment in product management.  The May 2012 and September 2015 VA examiners found that the Veteran's diabetes mellitus does not impact his ability to obtain employment.  He has not reported, and the evidence does not otherwise reflect, that he has been unemployed during the appeal period due to any service-connected disability or that he is prevented from securing and following gainful employment due to any such disability.  Therefore, the question of entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised by the record.  Id. 










ORDER

Entitlement to an increased rating for diabetes mellitus, type II, in excess of 20 percent is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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