Citation Nr: 1754215	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  12-31 856	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to a rating in excess of 40 percent for diabetes mellitus
type II, and a rating in excess of 10 percent for associated ischemic optic neuropathy with retinopathy.


REPRESENTATION

Appellant represented by:	Connecticut Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

I. Altendorfer, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1996 to July 1999.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.  The RO in Hartford, Connecticut certified the appeal to the Board.  The Veteran's claims file remains in the jurisdiction of the Hartford RO.

In a February 2013 rating decision, the RO increased the disability rating for the Veteran's service-connected diabetes to 40 percent disabling, effective February 10, 2011.  As the increase did not represent a total grant of the benefits sought on appeal, the claim remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).  

In November 2012, the Veteran testified before a RO Decision Review Officer (DRO).  A transcript of the hearing is of record.

In June 2015, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

In April 2016 and May 2017, the Board remanded the current issue for further evidentiary development.  The Board finds that there has been substantial compliance with prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).


FINDINGS OF FACT

1.  Between October 26, 2010 and October 26, 2011, the Veteran's diabetes mellitus type II was controlled by insulin, an oral hypoglycemic agent, and regulation of activities, requiring hospitalization within the year.  Diabetic complications included ischemic optic neuropathy with retinopathy. 

2.  Since October 26, 2011, the Veteran's diabetes mellitus type II has been controlled by insulin, an oral hypoglycemic agent, and regulation of activities, without requiring hospitalization of bimonthly visits with a diabetic care provider. 


CONCLUSION OF LAW

1.  The criteria for the assignment of a 60 percent rating effective October 26, 2010 until October 26, 2011, but not higher, for diabetes mellitus are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017).

2.  Since October 26, 2011, the criteria for the assignment of a rating in excess of 40 percent for diabetes have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913.

3.  Since February 10, 2011, the criteria for the assignment of a rating in excess of 10 percent for ischemic optic neuropathy with retinopathy have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.76, 4.76a, 4.84a, 4.119, Diagnostic Code 6066-6080.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Diabetes 

The Veteran is seeking an increased evaluation for his diabetes mellitus type II.  Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  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.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7 (2017).

While a Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 

In making all determinations, the Board must fully consider the lay assertions of record.  As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

The Veteran's diabetes is currently rated as 20 percent, effective July 30, 1999, and 40 percent from February 10, 2011 under the criteria of 38 C.F.R. § 4.119, Diagnostic Code 7913.  Under Diagnostic Code 7913, a 10 percent rating is assigned for diabetes mellitus manageable by restricted diet only.  Id.  A 20 percent rating is awarded where the disorder requires at least one dally injection of insulin and a restricted diet, or requires an oral hypoglycemic agent and a restricted diet.  See Schedule for Rating Disabilities; The Endocrine System, 82 Fed. Reg. 508502, 50806 (to be codified 38 C.F.R. pt. 4).  The criteria for a 40 percent rating require insulin, a restricted diet, and regulation of activities.  38 C.F.R. § 4.119, Diagnostic Code 7913.  A higher rating of 60 percent rating is warranted where the disorder 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.  Id.  A 100 percent rating is warranted where the disorder 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.  Id.

Competent medical evidence is required to establish "regulation of activities," namely, avoidance of strenuous occupational and recreational activities, under Diagnostic Code 7913.  See Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007).

Because of the successive nature of the rating criteria for diabetes, for example, the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating.  See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009).  Stated another way, if a component is not met at any one level, a veteran can only be rated at the level that did not require the missing component.  Id.  

In the February 2010 Report of Contact, a VA representative documented the Veteran's claim for a higher rating for diabetes.  In a February 2013 rating decision, the RO increased the Veteran's disability rating for diabetes from a 20 percent rating to a 40 percent rating.  As the increase did not represent a total grant of the benefits sought on appeal, the claim remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).  

The Veteran primarily receives medical treatment for his diabetes through the VA medical system and the Joslin Diabetes Center, an affiliate at Lawrence & Memorial Hospital in New London, Connecticut.  October 2010 VA progress notes indicated that the Veteran was hospitalized earlier that month due to diabetic complications.  In addition, VA treatment records noted that the Veteran had regular appointments every two weeks at the Joslin Diabetes Center.  Also, Lawrence & Memorial Hospital treatment records documented the Veteran receiving diabetic consultations at least twice a month between January 2011 and March 2011. 

In April 2011, the Veteran was afforded a VA examination.  The examiner recorded the October 2010 hospitalization as being due to a hypoglycemic reaction.  In addition, the examiner noted that the Veteran visits his diabetic care provider every two to three months.  

November 2011 VA treatment records documented the Veteran's reports that he meets with his doctor every two weeks and a nurse every week at the Joslin Diabetic Center. 

In November 2012, the Veteran was afforded a DRO hearing at a local RO.  There, the Veteran's representative stated that the Veteran had been admitted to the emergency room, due to low blood sugar.  The representative did not state when the Veteran received emergency medical care.  

The Veteran reported to another VA examination in January 2013.  There, the Veteran reported that he received emergency treatment for his diabetes on several occasions in 2010.  The examiner noted that the Veteran was not hospitalized within the last twelve months for ketoacidosis or hypoglycemic reactions.  In addition, the examiner recorded that the Veteran visits his diabetic care provider less than twice a month.  Again, at the July 2014 VA examination, the examiner recorded the Veteran visiting his diabetic care provider less than twice a month and he did not document any hospitalizations within the last twelve months.  

In June 2015, the Veteran attended a videoconference hearing.  The Veteran testified that his last hospitalization due to diabetic complications occurred in October 2010.  The Veteran explained that his diabetic care provider instructed him to use a DexCom kit in the upcoming months to monitor his diabetes.  Joslin Diabetes Center records revealed that the Veteran used the DexCom kit between September 10, 2015 and September 16, 2015. 

Most recently, the Veteran was afforded a VA examination in June 2016.  There, the Veteran reported that his most recent diabetes related hospitalization occurred four years prior.  The Veteran also indicated that he was on a DexCom machine for one month.  The examination report documented the Veteran visiting his diabetic care provider less than twice a month.  Also, the report noted no hospitalizations due to episodes of ketoacidosis or hypoglycemic reactions.  In responding to the Board's April 2016 remand, the examiner explained that the Veteran was monitored with a DexCom machine for a week in 2015.  The purpose of the DexCom test was to "get a better understanding of his blood sugars and insulin was adjusted accordingly."  The examiner noted that the Veteran is no longer on the DexCom testing program. 

The Joslin Diabetes Center records thoroughly tracked the frequency of the Veteran visits.  The progress notes reveal that throughout 2010 the Veteran visited the center once a month or less.  Between January 2011 and March 2011, the Veteran visited the center at least twice a month.  From April 2011 and thereafter, the Veteran visited the Joslin Diabetes Center less than twice a month.  Beginning in February 2013, the Veteran was scheduled for a diabetic consultation every three months. 

Following review of the record, the Board concludes that the Veteran is entitled to a 60 percent evaluation for diabetes, for the period between October 26, 2010 and October 26, 2011 only.  First, the Veteran's ischemic optic neuropathy with retinopathy is associated with the Veteran's diabetes and is assigned a 10 percent rating.  Next, the April 2011 VA examiner prescribed a restricted diet, daily insulin injections, and regulation of activities as the Veteran's diabetic care treatment.  The final issue is whether the Veteran's diabetic care consultations or hospitalizations meet the criteria for a 60 percent evaluation under Diagnostic Code 7913.  The relevant criterion is met when there is evidence indicating episodes of ketoacidosis or hypoglycemic reactions, which require at least one to two hospitalizations per year or visits to a diabetic care provider twice per month.  See 38 C.F.R. § 4.119, Diagnostic Code 7913.  Here, on October 26, 2010, VA treatment progress notes revealed the Veteran's hospitalization earlier in the month.  In addition, private treatment records documented the Veteran visiting his diabetic care provider at least twice a month.  Therefore, the criteria for a 60 percent evaluation have been met.    

A rating higher than 60 percent for the period between October 26, 2010 and October 26, 2011 is not warranted.  Pursuant to Diagnostic Code 7913, the criterion is met when there is evidence indicating episodes of ketoacidosis or hypoglycemic reactions, which require at least three hospitalizations per year or weekly visits to a diabetic care provider.  See 38 C.F.R. § 4.119, Diagnostic Code 7913.  Here, the VA treatment and Joslin Diabetes Center records revealed one hospitalization within the twelve month period and no more than two diabetes care visits per month.  Therefore, the evidence does not support a higher rating within this time period. 

The Board turns next to why it has determined that the Veteran is not entitled to a rating in excess of 40 percent for the period since October 26, 2011.  According to VA examination reports in January 2013, July 2014, and June 2016, the Veteran visited his diabetic care provider less than twice a month.  In addition, VA treatment records and Joslin Diabetes Center do not document the Veteran visiting his diabetic care professional at least twice a month.  The Veteran's last hypoglycemic reaction that resulted in hospitalization occurred in 2010.  

The Veteran maintains that he has visited his diabetic care provider at least twice a month throughout the entire appeal period and was hospitalized in 2012.  However, the VA treatment and Joslin Diabetes Center records do not substantiate the Veteran's contention.  The records documented the Veteran receiving diabetic care treatment, but the frequency of the visits occurred less than twice a month.  In fact, beginning in February 2013, Joslin Diabetes Center records specifically noted that the Veteran should follow-up every three months.  Also, the last documented hospitalization due to his diabetic disability occurred in 2010.  Therefore, the Board finds the medical treatment records more credible than the Veteran's statements regarding the frequency of his visits.  The medical evidence demonstrates that after October 26, 2011 the Veteran began to better manage his diabetes disabilities and his diabetic symptoms become less severe.  

In summary, the Board finds the most probative evidence of record demonstrates that an increase of the Veteran's disability rating for diabetes mellitus to 60 percent for the period from October 26, 2010 through October 26, 2011 is warranted, but the evidence is against an assignment of a higher rating for that time period or a higher rating for any other time period under review.  See 38 U.S.C. § 5107(b); see 38 C.F.R. §4.119, Diagnostic Code 7913.

In reaching the above conclusions,  the Board has considered the applicability of the benefit of the doubt doctrine.  However, to the extent the Veteran's claim has been denied, the preponderance of the evidence is against ratings higher than those assigned.  See 38 U.S.C. § 5107 (2012); Ortiz v. Principi, 274 F.3d 1361, 1364   (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56.

II.  Diabetic Complication: Ischemic Optic Neuropathy with Retinopathy 

The Board now turns to the Veteran's sole diagnosed diabetic complication.  Note One of Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913).  See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1.  Noncompensable complications are also considered part of the diabetic process under Diagnostic Code 7913.  Id.  Here, the record indicates that ischemic optic neuropathy, with retinopathy, is associated with diabetes mellitus.  Therefore, the Board will consider whether the Veteran is entitled to a higher rating for this disability and review the evidence concerning the state of the diabetic complication from the time period one year before the diabetes claim (February 2010).  Francisco, 7 Vet.  App. at 58; Hart, 21 Vet. App. at 505.

The Veteran's retinopathy has been assigned a 10 percent rating under Diagnostic Code 6066-6080, effective from February 2011.  38 C.F.R. § 4.79 (2017).  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2017).  Diagnostic Code 6066 applies to the impairment of visual acuity.  38 C.F.R. § 4.79.  Diagnostic Code 6080 applies to visual field defects.  Id.  In March 2015, the RO granted service connection for left eye ischemic optic neuropathy with retinopathy, associated with diabetes, and assigned a 10 percent rating. 

Visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function.  38 C.F.R. § 4.77(c) ("[S]eparately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity), and combine them under the provisions of § 4.25").  Here, the record indicates visual impairment in the form of visual acuity and visual fields.

Diagnostic Codes 6061 to 6066 pertain to impairment of central visual acuity.  38 C.F.R. § 4.79.  Visual acuity is rated based upon the best corrected distance vision, even if a central scotoma is present.  However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity.  38 C.F.R. § 4.76(b). 

Diagnostic Code 6066 provides that a 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) if corrected visual acuity is 20/100 in one eye and 20/40 in the other eye; (2) if corrected visual acuity is 20/70 in one eye and 20/40 in the other eye; (3) if corrected visual acuity is 20/50 in one eye and 20/40 in the other eye; (4) or when corrected visual acuity is 20/50 in both eyes.  38 C.F.R. § 4.79, Diagnostic Code 6066.

A 20 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) if corrected visual acuity is 15/200 in one eye and 20/40 in the other eye; (2) if corrected visual acuity is 20/200 in one eye and 20/40 in the other eye; (3) if corrected visual acuity is 20/100 in one eye and 20/50 in the other eye; or (4) corrected visual acuity of 20/70 in one eye and 20/50 in the other eye.  38 C.F.R. § 4.79, Diagnostic Code 6066.

Diagnostic Code 6080 and 6081 pertain to impairment of visual fields.  Eight principal meridians (expressed in degrees) represent the extent of an individual's visual field.  The normal values of these principal meridians are as follows: Temporally at 85, down temporally at 85, down at 65, down nasally at 50, nasally at 60, up nasally at 55, up at 45, up temporally at 55.  38 C.F.R. § 4.77(b).  The combined sum is 500.  The average concentric contraction is calculated by measuring the remaining visual fields (in degrees) at each of the eight principal meridians 45 degrees apart, adding the values, and dividing the sum by eight.  The average concentric contraction represents the remaining visual field.  Id.

The rating criteria dictate that when the remaining visual field is between 46 and 60 degrees, a 10 percent rating is applied for unilateral or bilateral impairment; alternatively, each affected eye may be evaluated as 20/50.  When the remaining visual field is between 31 and 45 degrees, a 10 percent rating is applied for unilateral and a 30 percent rating is applied for bilateral; or alternatively each affected eye may be evaluated as 20/70.  When the remaining visual field is between 16 and 30 degrees, a 10 percent rating is applied for unilateral and a 50 percent rating is applied for bilateral; or alternatively each affected eye may be evaluated as 20/100.  38 C.F.R. § 4.79, Diagnostic Code 6080. 

The Veteran was afforded a VA eye examination in April 2011.  The examination report documented a diagnosis of primary open-angle glaucoma, left eye greater than the right eye, as a result of diabetes.  The Veteran displayed moderate cupping and repeatable defects on the Humphrey Visual Field for the left eye.  The examination results correlated with abnormal Ocular Coherence Tomography in the left eye.  In regards to visual acuity, the Veteran presented excellent central visual acuity in both eyes. 

April 2013 VA optometry progress notes recorded a history of mild Non-proliferative Diabetic Retinopathy in both eyes.  The clinician noted that the Veteran experiences intermittent blur in both eyes: "occurs rarely (1x/month), however vision overall stable since last visit."   

November 2013 VA optometry progress notes documented that the left eye "consistently has nasal defects in the past, but extent of defect likely secondary to poor reliability."  The clinician noted that the Veteran reported not being "given ample time to adjust before testing his left eye." 

July 2014 VA optometry progress notes revealed an impression of ischemic optic neuropathy.  The VA clinician stated that visual field defects had not been progressive since 2011.  The clinician found a superior nasal deft in the left eye from possible ischemic optic neuropathy.  In regards to visual acuity, the report documented the Veteran to have "good central vision at distance and near" as well as "no visual impairment from this condition." 

January 2015 VA optometry progress notes documented "clean fields" in the right eye, but "superior nasal step defect" in the left eye.  January 2016 VA treatment records recorded "superior temporal and nasal defects" in the right eye and "superior nasal step" in the left eye.  February 2016 VA treatment records noted "1 edge defect IT, small luster of [sic] defects SN compared to previous [visual fields]" of the right eye and "SN defect with 1 point cross the H midline and 1 point cross the V midline." 

The Veteran was afforded a final VA eye examination in June 2016.  The examination report documented diagnoses of ischemic optic neuropathy of the left eye and nonproliferative diabetic retinopathy.  The Veteran's left and right eye corrected far vision was reported as 20/40 or better.  Visual field tests were performed and the examiner noted the presence of a visual field defect.  A May 2017 addendum VA examination report documented the Veteran's right eye to show an average contraction to 63.75 and his left eye to show an average contraction to 60.00.  

Following review of the record, the Board finds that the criteria for a rating higher than 10 percent have not been met for the period since February 2011.  According to the June 2016 VA examination report, the Veteran's visual acuity is corrected to 20/20 or better.  See Diagnostic Code 6066.  Further, the visual field test results in the June 2016 do not warrant a disability rating in excess of 10 percent.  See Diagnostic Code 6080.  VA treatment records do not reflect additional impairments in visual acuity or visual field issues.  Therefore, the Veteran is not entitled to a schedular rating in excess of 10 percent for his ischemic optic neuropathy with retinopathy.
ORDER

A disability rating of 60 percent, but no higher, for diabetes is granted, for the period from October 26, 2010 to October 26, 2011.  

From October 26, 2011, a rating in excess of 40 percent for diabetes is denied.

A disability rating in excess of 10 percent for ischemic optic neuropathy with retinopathy is denied.
 




____________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals















	


Department of Veterans Affairs

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