Citation Nr: 18131223
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-31 402A
DATE:	August 31, 2018
ORDER
Entitlement to an evaluation in excess of 20 percent for diabetes mellitus with erectile dysfunction is denied.
FINDING OF FACT
The Veteran's service-connected diabetes mellitus with erectile dysfunction requires insulin treatment and a restricted diet, but has not required regulation of activities.
CONCLUSION OF LAW
The criteria for a rating in excess of 20 percent for service-connected diabetes mellitus with erectile dysfunction have not been met.  38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from September 1966 to September 1969.
VA has met all statutory and regulatory notice and duty to assist provisions with respect to the issues decided herein.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Here, VA correspondence dated in June 2012 satisfied the duty to notify provisions, to include notification of the regulations pertinent to the establishment of an effective date and disability rating. 
The evidence includes the Veteran's service treatment records, VA treatment records, and lay evidence.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  The Veteran underwent VA examinations in connection with his current claim on appeal in June 2012 and August 2013.  Upon review, the Board finds the VA examinations and opinions sufficient and adequate for the purposes of determining disability ratings.  The VA examiners reviewed the Veteran's relevant medical history and lay testimony, completed physical examinations and other appropriate testing, and provided opinions as to the clinical findings.  In addition, the VA examiners provided adequate rationale for the opinions stated, relying on and citing to the records reviewed.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion, not from the mere fact that the claims file was reviewed).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).  The Board also notes that the Veteran refused to report for an additional examination relevant to his diabetes mellitus with erectile dysfunction in 2017; however, VA treatment records dated as recently as 2018 do not show any worsening of the Veteran’s diabetes symptomatology since the August 2013 VA examination.  
There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file.  See Pelegrini, 18 Vet. App. 112.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield, 20 Vet. App. at 543; see also Dingess/Hartman, 19 Vet. App. at 486.
The Board has thoroughly reviewed all of the evidence in the Veteran's claims file.  Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters decided herein.  The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).
Here, the Veteran claims he is entitled to a disability rating higher than 20 percent for his diabetes mellitus with erectile dysfunction.  In February 2012, the Veteran submitted the current claim for an increased disability evaluation and a July 2012 rating decision continued the 20 percent disability evaluation.
Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017).  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2017); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  
The primary concern for an increased rating for a service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  
Here, the Veteran's service-connected diabetes mellitus with erectile dysfunction is currently assigned a 20 percent disability rating pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913.  Under that diagnostic code, a 20 percent disability evaluation is assigned for diabetes mellitus requiring insulin and restricted diet; or, oral hypoglycemic agent and restricted diet.  A 40 percent evaluation is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities.  A 60 percent evaluation is contemplated when diabetes mellitus 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.  A 100 percent disability evaluation is warranted if diabetes mellitus requires more than one daily injection of insulin, a 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 in Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities." 38 C.F.R. § 4119. Diagnostic Code 7913, Note (1) indicates that compensable complications of diabetes mellitus are to be evaluated separately unless they are used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 
The Board notes that the Veteran has been separately service connected for peripheral vascular disease of all extremities, hypertension, atrial fibrillation, slight decrease in anal tone, and diabetic dermopathy of the bilateral lower extremities, which are all associated with his diabetes mellitus, but have been the subject of separate decisions and are not currently before the Board.  Additionally, the Veteran has also been granted special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ associated with his diabetes mellitus effective April 2002.  The Board also emphasizes that the Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) since August 28, 2008; as such, the issue of entitlement to a TDIU is also not currently before the Board.  Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  
The Veteran was provided with a VA Diabetes Mellitus Examination in June 2012, at which time he was diagnosed as having diabetes mellitus, type II.  With respect to treatment, the Veteran was prescribed an oral hypoglycemic agent and more than one insulin injection per day.  Significantly, however, the examination report indicated that the Veteran did not require regulation of activities as part of his medical management of diabetes mellitus.  Furthermore, the examination report indicated that the Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month, and that he experienced zero episodes of ketoacidosis and/or hypoglycemia requiring hospitalization over the previous twelve months.  
The Veteran was provided with another VA Diabetes Mellitus Examination in August 2013, at which time he was again diagnosed as having diabetes mellitus, type II.  With respect to treatment, the Veteran was prescribed an oral hypoglycemic agent and more than one insulin injection per day as well as well as a restricted diet.  Significantly, however, the examination report indicated that the Veteran did not require regulation of activities as part of his medical management of diabetes mellitus.  Furthermore, the examination report indicated that the Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month, and that he experienced zero episodes of ketoacidosis and/or hypoglycemia requiring hospitalization over the previous twelve months.  
In correspondence dated in March 2017, Veterans Evaluation Services indicated that the Veteran’s appointment for another Diabetes Mellitus Examination as well as a Male Reproductive System Conditions Examination had been canceled because the Veteran refused to travel the distance to the closest appointment.  
The Veteran’s most recent VA treatment records pertinent to diabetes, dated in January 2018, indicate that his current therapy included insulin aspart (NovoLog), metformin, and liraglutide, with no evidence of regulation of activities as part of his medical management of diabetes mellitus.
The medical evidence shows that the Veteran's service-connected diabetes mellitus, type II is treated with insulin and restricted diet.  However, there is no evidence that the Veteran must restrict his occupational and recreational activities in response to his diabetes mellitus, type II.  No treatment provider has ever said that the Veteran is required to regulate his activities, and there was nothing else in the record to suggest that he was to avoid strenuous and occupational and recreational activities.  
Overall, treatment records reflect that the Veteran is seen by his provider every few months to monitor blood sugar levels.  No outpatient or inpatient treatment for episodes of hypoglycemia or ketoacidosis was recorded. No limitations of his activities to help regulate his diabetes mellitus symptoms were prescribed. 
The Board has considered the Veteran's arguments that his symptoms meet the criteria for a 40 percent rating for diabetes mellitus due to the number of insulin units he was prescribed, but finds that his statements alone do not support the claim for an increased rating. The Court has held that medical evidence is required to show that occupational and recreational activities have been restricted for purposes of Diagnostic Code 7913 providing a 40 percent disability rating for diabetes when the diabetes requires insulin, restricted diet, and regulation of activities.  See Camacho v. Nicholson, 21 Vet. App. 360 (2007).  Moreover, the Board notes that the Veteran has not offered specific examples of how his diabetes mellitus affects him beyond the need for insulin and restricted diet. Thus, the Board concludes that the competent evidence of record does not demonstrate that the Veteran must restrict his activities to manage his service-connected diabetes mellitus.  Treatment notes are consistent with this finding.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as indicated by the above discussion, the preponderance of the evidence is against the Veteran's claim of entitlement to a higher rating for his service-connected diabetes mellitus, type II.  
Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Services to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. 
Here, the Board finds the Veteran's disability picture is not so unusual or exceptional in nature as to render the rating assigned for this period inadequate.  The Veteran's service-connected diabetes mellitus is controlled by insulin and restricted diet.  This criterion is contemplated by the rating schedule.  See 38 C.F.R. § 4.119, Diagnostic Code 7913; Thun, 22 Vet. App. at 115.  The Board finds that the criteria for the evaluation assigned more than reasonably describes the Veteran's disability level and symptomatology during this period, and therefore, the schedular evaluation is adequate and no referral is required.  See 38 C.F.R. § 4.119, Diagnostic Codes 7913; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996).
Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 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, in this case, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition.  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 only to the combined effect of multiple conditions.

 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Anthony M. Flamini, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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