Citation Nr: 1754194
Decision Date: 11/28/17 Archive Date: 12/07/17
DOCKET NO. 11-33 336 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
1. Entitlement to a rating in excess of 40 percent for diabetes mellitus, type two, from December 11, 2007, and in excess of 60 percent from February 28, 2017, to include noncompensable ratings for impotence and retinopathy.
2. Entitlement to a rating in excess of 60 percent for nephropathy, secondary to diabetes mellitus, type two.
3. Entitlement to a rating in excess of 20 percent for peripheral neuropathy, upper extremities, secondary to diabetes mellitus, type two.
4. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, lower extremities, secondary to diabetes mellitus, type two.
5. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities.
Appellant represented by: Elizabeth L. Lunn, Esq.
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
C. Ryan, Associate Counsel
The Veteran served on active duty from July 1969 to January 1972.
This matter comes to the Board of Veterans’ Appeals (Board) from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
The Veteran presented testimony at a videoconference hearing before a retired Veterans Law Judge (VLJ) in September 2015. The VLJ has since retired, and the Veteran indicated, by not returning an inquiry form to the VA, that he is satisfied with continuing the appeal without an additional hearing.
The issues of entitlement to increased ratings for bilateral upper and lower peripheral neuropathies, a rating in excess of 60 percent for nephropathy and entitlement to a separate compensable rating for impotence are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Throughout the period on appeal, the Veteran’s diabetes mellitus required insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions, plus complications that would not be compensable if separately evaluated
2. Diabetes mellitus type II is not manifested by episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization more than three times a year.
3. Resolving all reasonable doubt in the Veteran’s favor, the Veteran is precluded by reason of his service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment.
CONCLUSIONS OF LAW
1. Throughout the period on appeal, the criteria for a uniform 60 percent rating for diabetes mellitus type II have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913.
2. The criteria for a rating in excess of 60 percent for diabetes mellitus type II have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913.
3. The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran’s appeal involves his service-connected diabetes mellitus type II, which is rated under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913.
Under Diagnostic Code 7913, a 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating requires insulin, a restricted diet, and regulation of activities. A 60 percent rating requires insulin, a 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 (Note (1) to Diagnostic Code 7913 indicates that noncompensable complications are considered part of the diabetic process).
Finally, the maximum rating of 100 percent is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of 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.
Regulation of activities is defined by Diagnostic Code 7913 as the “avoidance of strenuous occupational and recreational activities”. Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007).
A review of the evidence demonstrates:
After filing a claim for service connection for diabetes, the RO rated the Veteran at 20 percent disabling, effective December 11, 2007.
An April 2009 Compensation and Pension (C&P) examination revealed that the Veteran suffered no ketoacidosis or hypoglycemic episodes requiring hospitalizations in the previous 12 months.
Following this examination, the RO increased the Veteran’s initial disability rating to 40 percent, effective December 11, 2007.
The RO did not provide the Veteran with another examination, despite the Veteran’s appeal status, until March 2017. At that examination, the Veteran informed the examiner he had been hospitalized zero times for ketoacidosis in the past 12 months and once for hypoglycemia in the past 12 months. Moreover, the Veteran had not experienced unintentional weight loss or a less of strength due to diabetes mellitus type two.
Following the Veteran’s examination, the RO increased the Veteran’s disability rating to 60 percent, effective February 28, 2017.
In correspondence to the Board, the Veteran has not indicated that he has been hospitalized more than three times in the past 12 months, or that he has unintentionally lost weight and or strength. Furthermore, a review of the Veteran’s VA medical records confirms his statements.
As an initial matter, the Board finds the Veteran’s staged rating inappropriate, and the Veteran eligible for a 60 percent rating throughout the appeal period. Given that the Veteran received only one examination throughout the period on appeal, it is impossible to determine when the symptoms necessitating a 60 percent rating began. However, consistent with the lay evidence and giving the Veteran all benefit-of-the-doubt, it shall be for the entire appeal period.
Applying the law to the facts of the case, the Board finds the Veteran not eligible for a rating higher than 60 percent. To warrant an evaluation of 100 percent, the Veteran would have to demonstrate that he has been hospitalized more than three times in the past 12 months, and he has neither contended that he suffered in such a manner, nor has he demonstrated that. Accordingly, the Veteran is not eligible for a 100 percent rating.
Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more; or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).
In this case, the Veteran meets the schedular criteria under 38 C.F.R. § 4.16(a). After reviewing the record, the Board finds that the Veteran’s occupational background, medical history, lay testimony, and the reports from VA examinations demonstrate that he is incapable of securing or following substantial gainful employment. Moreover, the Veteran is in receipt of SSA disability benefits. Consequently, a TDIU will be granted.
Entitlement to a rating of 60 percent throughout the entire appeal period is granted.
Entitlement to an increase for diabetes mellitus type two is denied.
Entitlement to TDIU is granted.
The Veteran contends that he is entitled to increased ratings for peripheral neuropathies of the upper and lower extremities and rating in excess of 60 percent for nephropathy. The Board finds remands warranted for those conditions, as the Veteran deserves new examinations before adjudication.
In February 2017, the Board increased the Veteran’s diabetes mellitus, given the increase in severity of his condition. Accordingly, as the Veteran’s peripheral neuropathy claims are secondary to his diabetes mellitus claim, the Board finds new examinations for those conditions necessary. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim).
With respect to the Veteran’s diabetic retinopathy, the Board notes that the record is inadequate to decide whether a separate compensable rating is warranted. Notably, the most recent VA eye examination noted that the Veteran’s eye condition caused a visual field defect. The report referenced the results of a Goldmann test; however, the results of this test have not been included in the record. Pursuant to 38 C.F.R. § 4.77(a), a remand is warranted in order to obtain these results.
Furthermore, an examination is necessary to evaluate the Veteran’s impotence in order to determine if a separate compensable rating is warranted. At the Veteran’s most recent examination, he declined a penile examination and the examiner did not request an explanation from the Veteran to determine if there was a penile deformity. Additional information is needed to properly evaluate this issue.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for an examination of his bilateral upper and lower extremities and his nephropathy. The examiner is asked to determine if the Veteran’s conditions have worsened in severity, due to the progression of his diabetes mellitus.
2. Locate and associate with the record the Goldmann chart associated with the Veteran’s March 2017 VA eye examination report. See 38 C.F.R. § 4.77(a).
3. Schedule the Veteran for an examination to determine the nature and severity of his impotence. If the Veteran declines such an examination, the examiner is asked to elicit verbally information pertaining to any potential deformities of the penile region.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs