Citation Nr: 1327679 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 10-02 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 60 percent for diabetes mellitus type I with hypertension. 2. Entitlement to an initial rating in excess of 30 percent for diabetic retinopathy. 3. Entitlement to a separate, compensable rating for erectile dysfunction, secondary to diabetes mellitus type I. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active military duty from December 1983 to August 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which continued a previously assigned rating of 60 percent for diabetes mellitus type I with hypertension and with diabetic retinopathy and erectile dysfunction, both claimed in February 2006. In an August 2007 rating decision, the RO granted a separate, 30 percent rating for diabetic retinopathy, effective from February 22, 2006, the date the claim was received. The Court has held that a rating decision issued subsequent to a notice of disagreement that grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an initial increased rating for diabetic retinopathy remains in appellate status. In February 2010, the Veteran withdrew his request for a hearing at the RO before a Veterans Law Judge. For the reasons discussed below, the Board has recharacterized the claims on appeal, to include consideration of entitlement to a separate, compensable rating for erectile dysfunction, secondary to diabetes mellitus type I. That issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A preponderance of the evidence is against a finding that diabetes mellitus requires a regulation of the Veteran's activities. 2. Bilateral diabetic retinopathy has been manifested by corrected distance visual acuity of 20/30 in the right eye and 20/20 in the left eye and by average concentric contraction of 20 in the right eye and 22 in the left eye. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 60 percent for diabetes mellitus with hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.10, 4.119, Diagnostic Code 7913, 4.104, Diagnostic Code 7101 (2012). 2. With resolution of all reasonable doubt in the Veteran's favor, the criteria for an initial disability rating of 50 percent, but no higher, for bilateral diabetic retinopathy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7 (2012); 38 C.F.R. §§ 4.75, 4.76, 4.76a, 4.77, 4.84, 4.84a, Diagnostic Codes 6078, 6080 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a May 2006 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection for diabetic retinopathy on a secondary basis and for an increased rating for diabetes mellitus, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised him of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The case was readjudicated in August 2010. However, the appeal regarding diabetic retinopathy arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2012). Thus, because the notice that was provided before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (holding that where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post-service VA and private treatment records, lay statements and hearing testimony, and VA fee-basis examination reports and medical opinions. In summary, VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Criteria & Analysis Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2, when assigning a disability rating, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation during the relevant rating period. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods for each disability on appeal. 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 (2012). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Diabetes Mellitus with Hypertension The Veteran's diabetes mellitus type I with hypertension is rated as 60 percent disabling pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). 7913 Diabetes mellitus Rating 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 100 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 60 Requiring insulin, restricted diet, and regulation of activities 40 Requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet 20 Manageable by restricted diet only 10 Note (1): 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. Note (2): When diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). The definition of "regulation of activities" in the criteria for a 100 percent rating, that is, the "the avoidance of strenuous occupational and recreational activities," also applies to the "regulation of activities" criterion for a 40 or 60 percent rating under Diagnostic Code 7913. In addition, the criterion of "regulation of activities" requires medical evidence that occupational and recreational activities have been restricted by the diabetes. Camacho v. Nicholson, 21 Vet. App. 360, 363-65 (2011). Moreover, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the criteria listed in the 60 percent rating must be met in order to warrant such a rating. The provisions of 38 C.F.R. § 4.7 pertaining to a higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating, do not apply. See Camacho at 366-67; see also Tatum v. Shinseki, 23 Vet. App. 152, 156 (2011) (where there are successive rating criteria as in DC 7913, to grant a higher rating where only two out of three criteria are met would eviscerate the need for different ratings since symptoms established for either rating might be the same). By way of history, the Board notes that a July 2004 rating decision increased the assigned rating for diabetes mellitus to 60 percent, effective from February 11, 1999, following the Veteran's July 2003 claim for an increased rating. The narrative section of the rating decision explained that reasonable doubt had been resolved in the Veteran's favor and the RO believed that his diabetes mellitus more nearly approximated the criteria for a 60 percent rating. The RO indicated that medical evidence from February 1999 reflected the Veteran's complaint of problems over the years with hypoglycemia requiring hospital admission. In April 1999, he complained of nearly monthly episodes of hypoglycemia that required another person to give him juice. He also reported a history of being hospitalized almost two times per year for the past five years for hypoglycemia-related syncope. The RO noted that his VA treatment records indicated a relationship between episodes of hypoglycemia and physical activity. A review of VA treatment records dated from February 1999 to December 2003 that were considered with the Veteran's July 2003 claim for an increased rating indicates that at no time was regulation of activities required of the Veteran. Rather, in April 1999 the Veteran's physician specifically advised him to eat a protein-containing snack before exercising and not to skip meals. With the current claim for increase, the Board has reviewed the entire record, to include the VA fee-basis examinations conducted in June 2007 and December 2009, as well as private and VA treatment records. Despite the assertions by the Veteran and his spouse that he follows a strict regulation of strenuous occupational and recreational activities, there is no documentation of medical evidence requiring regulation of activities by a medical professional because of the Veteran's diabetes. While an April 2007 individual sick slip from a private doctor advised that the Veteran's "work hours must not exceed 18:00 [6:00 p.m.] to keep" stable his insulin dependent diabetes, the note did not specifically require avoidance of strenuous occupational activity. Similarly, VA treatment records dated in June and December 2009 reflect the Veteran's report that he was walking, biking, and swimming for exercise, but he was not instructed to avoid those or other recreational activities. Thus, because the Veteran's diabetes mellitus disability does not warrant a rating higher than 20 percent at any point during the relevant period, it follows that a rating in excess of the currently assigned, 60 percent rating, is not warranted because the medical evidence of record does not reflect that regulation of activities is required for the Veteran's diabetes mellitus disability. Having reviewed the medical and lay evidence of record, the Board also finds that the Veteran's hypertension associated with his service-connected diabetes mellitus does not warrant a separate, compensable rating. For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2012). The minimum, 10 percent, rating for hypertension requires diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Here, the medical evidence of record does not reflect diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more. Instead, the Veteran's diastolic pressure has been recorded predominantly in 70s to mid-80s, including during military service. His systolic pressure has been predominantly below the 150s. However, on fee-basis examination in June 2007, his blood pressure was recorded as 151/84, 151/89, and 146/89. In a December 2009 VA emergency department nursing triage note, his blood pressure was recorded as 151/73 at approximately 12:30 in the afternoon; he admitted that he had not eaten yet that day. During a fee-basis examination in later in December 2009, his blood pressure was recorded as 133/86, 139/88, and 135/71. Based on the objective medical evidence of record, the Board finds that the evidence does not support a separate, compensable rating for hypertension. Although the Board finds that a rating higher than 20 percent for diabetes mellitus is not warranted based on the medical evidence, the Board will not disturb the assigned 60 percent rating. Diabetic Retinopathy The Veteran's claim arises from his February 2006 claim for service connection for diabetic retinopathy secondary to service-connected diabetes mellitus. The Board notes that during the pendency of the appeal, the applicable rating criteria for eye disabilities, found at 38 C.F.R. §§ 4.75 to 4.84a, were amended effective December 10, 2008. The December 2008 revisions are only applicable to applications for benefits received by VA on or after December 10, 2008. See 73 Fed. Reg. 66,543-66,554 (November 10, 2008). As the present claim was filed before that date, the changes are not applicable and the Board will only consider the criteria under the prior regulations set forth under 38 C.F.R. §§ 4.75, 4.76, 4.76a, 4.77, 4.84, 4.84a (2008). The Veteran's diabetic retinopathy is rated as 30 percent disabling pursuant to 38 C.F.R. § 4.84a, Diagnostic Code 6078, the criteria to evaluate impairment of central visual acuity. 38 C.F.R. § 4.84a (2008). The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a. Under these criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent based on the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079 (in effect prior to December 10, 2008). A disability rating for visual impairment is based on the best distant vision obtainable after the best correction by glasses. 38 C.F.R. § 4.75. The percentage evaluation will be found from Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. 38 C.F.R. § 4.83a. A noncompensable rating is warranted for impairment of central visual acuity when vision is 20/40 or better bilaterally. A 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable 20/50 and vision in the other eye is correctable to either 20/40 or 20/50; (2) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/40; or (3) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079 (2008). Higher ratings are available for more severe loss of central visual acuity. Impairment of field of vision is evaluated pursuant to the criteria found in Diagnostic Code 6080. 38 C.F.R. § 4.84a, Diagnostic Code 6080 (in effect prior to December 10, 2008). Under Diagnostic Code 6080, homonymous hemianopsia of the visual field warrants a 30 percent rating, loss of temporal half of the visual field warrants a 30 percent rating if bilateral, a 10 percent rating if unilateral, or is rated as 20/70. Loss of the nasal half of the visual field bilaterally results in a 20 percent rating, unilaterally results in a 10 percent evaluation, or may be rated as 20/50. Id. Concentric contraction of the visual field to 5 degrees, results in a 100 percent evaluation if bilateral, a 30 percent rating if unilateral, or may be rated as 5/200. Concentric contraction of the visual field to 15 degrees but not to 5 degrees results in a 70 percent bilateral evaluation, a 20 percent unilateral rating, or is rated as 20/200. Id. Concentric contraction of the visual field to 30 degrees but not to 15 degrees, bilaterally, results in a 50 percent evaluation, unilaterally results in a 10 percent rating, or is rated as 20/100. Concentric contraction of the visual field to 45 degrees but not to 30 degrees bilaterally results in a 30 percent rating, unilaterally results in a 10 percent evaluation, or is rated as 20/70. Id. A concentric contraction of the visual field to 60 degrees but not to 45 degrees results in a bilateral evaluation of 20 percent, a unilateral evaluation of 10 percent, or rate as 20/50. Demonstrable pathology commensurate with the functional loss will be required. The concentric contraction evaluations require contraction within the stated degrees, temporally; the nasal contraction may be less. 38 C.F.R. § 4.84a, Diagnostic Code 6080, Note (2). According to 38 C.F.R. § 4.76, measurement of the visual field will be made when there is disease of the optic nerve or when otherwise indicated. 38 C.F.R. § 4.76a explains how ratings are assigned based on impairment of field vision, as follows. The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual field in each of the eight 45 degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. The degrees lost are then added together to determine the total degrees lost. This is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by 8 represents the average contraction for rating purposes. 38 C.F.R. § 4.76a. According to Table III in 38 C.F.R. § 4.76a, the normal visual field extent at the 8 principal meridians, in degrees, is: temporally, 85; down temporally, 85; down, 65; down nasally, 50; nasally, 60; up nasally, 55; up, 45; up temporally, 55. The total visual field is 500 degrees. 38 C.F.R. § 4.76a, Table III (2008). The pertinent evidence of record includes the June 2007 VA fee-basis examination report, as well as private and VA treatment records dated from 2006 to 2010. The evidence shows that the Veteran does wear eyeglasses. The Veteran cancelled a VA fee-basis examination in October 2009 when he temporarily withdrew his appeal and he failed to report for a VA fee-basis optometry examination in January 2010 without providing a good cause for failing to appear and without requesting to reschedule. In a January 2006 private optometry note, the Veteran's corrected visual distance acuity was 20/25 in the right eye and 20/20 in the left eye. The assessment included background diabetic retinopathy, beginning stages; refractive error - myopia; astigmatism; and presbyopia. During a June 2007 VA fee-basis examination, he described distorted vision manifested by missing or blank spots that settle after several days. He denied any incapacitation caused by his eye symptoms. On examination, uncorrected far vision in the right eye was 5/400, uncorrected near vision in the right eye was 20/60, corrected far vision in the right eye was 20/30, and corrected near vision in the right eye was 20/25. Uncorrected far vision in the left eye was 5/400, uncorrected near vision in the left eye was 20/60, corrected far vision in the left eye was 20/20, and corrected near vision in the left eye was 20/25. Intraocular pressure was within normal limits in each eye, keratoconus was not present, he did not have diplopia, and slit lamp examination revealed normal findings. Goldman visual fields utilizing a III/4e test object showed the following field of vision findings for the right eye: 55 degrees temporally, 75 degrees down temporally, 49 degrees down, 39 degrees down nasally, 34 degrees nasally, 30 degrees up nasally, 25 degrees up, and 33 degrees up temporally. Adding the findings together results in 340 total degrees lost. Subtracting 340 total degrees lost from 500 degrees of normal visual field results in 160 total remaining degrees of visual field. Dividing 160 total remaining degrees by 8 results in an average concentric contraction of 20 degrees. Goldman visual fields utilizing a III/4e test object showed the following field of vision findings for the left eye: 48 degrees temporally, 67 degrees down temporally, 55 degrees down, 30 degrees down nasally, 30 degrees nasally, 28 degrees up nasally, 28 degrees up, and 38 degrees up temporally. Adding the findings together results in 324 total degrees lost. Subtracting 324 total degrees lost from 500 degrees of normal visual field results in 176 total remaining degrees of visual field. Dividing 176 total remaining degrees by 8 results in an average concentric contraction of 22 degrees. The diagnosis was diabetic retinopathy with objective evidence of microaneurysms consistent with background diabetic retinopathy. A September 2007 VA eye clinic note reflects corrected distance vision of 20/20 in each eye. During an April 2009 VA eye consultation, the Veteran stated that his eyes hurt in the morning. Following an examination, which revealed microaneurysms of the left eye, the diagnosis included mild diabetic retinopathy, left eye. The Board notes that in the August 2007 rating decision that assigned an initial 30 percent rating for diabetic retinopathy, the RO calculated the average concentric contraction for each eye by dividing the total degrees lost by 8 rather than subtracting the total degrees lost from 500 and then dividing by 8. As a result, the RO calculated an average concentric contraction of 43 in the right eye (340÷8) and 41 in the left eye (324÷8=40.5, rounded to 41). It appears that the RO then assigned a 30 percent rating for diabetic retinopathy based on bilateral concentric contraction of the visual field to 45 but not to 30. See 38 C.F.R. § 4.84a, Diagnostic Code 6080 (2008). With resolution of reasonable doubt in the Veteran's favor, the Board concludes that the evidence of record establishes that an initial rating of 50 percent, but no higher, is warranted for bilateral peripheral neuropathy. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Here, although the medical evidence of record does not explicitly diagnose bilateral diabetic retinopathy, and the April 2009 VA ophthalmologist diagnosed mild diabetic retinopathy of only the left eye, the visual field examination from June 2007, which was recorded three times and which produced generally consistent results between the right and left eyes, is persuasive evidence of the extent of the Veteran's eye disability. In addition, the Board notes that the evidence of record does not appear to establish that the Veteran's loss of field vision is due to a cause other than diabetic retinopathy. Finally, the Board also observes that because the evidence of record reflects multiple diagnosed diabetes complications for which service connection is in effect, it is reasonable to resolve doubt in the Veteran's favor that he also has diabetic retinopathy manifested by contraction of visual fields in both eyes as a result of his diabetes mellitus. Accordingly, applying an average concentric contraction of 20 in the right eye and 22 in the left eye to Diagnostic Code 6080, the Board finds that an initial 50 percent rating is warranted for bilateral diabetic retinopathy based on concentric contraction to 30 degrees but not to 15 degrees. The Board has considered whether a rating higher than 50 percent is warranted; however, the medical evidence of record does not reflect field vision limited by more than the calculated average concentric contractions on VA fee-basis examination in June 2007. Therefore, an initial rating in excess of 50 percent for bilateral diabetic retinopathy is not warranted. Extraschedular Consideration of Diabetes Mellitus with Hypertension and Diabetic Retinopathy Disabilities The Board has considered whether the Veteran's diabetes mellitus with hypertension and diabetic retinopathy disabilities present 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 an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's diabetes mellitus with hypertension and diabetic retinopathy disability level and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims for higher ratings than that assigned for diabetes mellitus with hypertension and than that awarded for bilateral diabetic retinopathy, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to a rating in excess of 60 percent for diabetes mellitus type I with hypertension is denied. Entitlement to a disability rating of 50 percent for bilateral diabetic neuropathy is allowed, subject to the regulations governing the award of monetary benefits REMAND After reviewing the evidence of record, the Board finds that additional development is required to determine whether a separate, compensable rating is warranted for erectile dysfunction associated with the Veteran's diabetes mellitus disability. Diagnostic Code 7522 provides for a compensable, 20 percent rating for penile deformity with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. A January 2006 private treatment record reflects that the Veteran requested and received prescription medication for erectile dysfunction. During a May 2006 VA urology consultation, he reported a poor clinical response to medication. Physical examination findings did not reveal deformity. The Veteran indicated he was open to trying caverject and that he was adept at needle usage. Alprostadil injections were prescribed, and the urologist instructed the Veteran on proper technique and advised him of risks, including priapism, scar tissue formation, and Peyronie's disease. On VA fee-basis examination in June 2007, he reported that he was able to achieve and maintain an erection with medication. He also stated that one time he tried using injections, but they were too expensive. Male genital examination was reported as normal. During a VA primary care visit in December 2009, the Veteran reported painful erections that were not as good as in the past and bent penile shaft. He was referred to urology to rule out Peyronie's disease. On VA fee-basis examination in December 2009, he stated that he could not achieve and maintain an erection. Examination of the penis and testicles was reported as normal. During a VA urology consultation later the same month, the Veteran reported a one-year history of penile curvature with no history of trauma and ability to attain erections of 5/10 on a firmness scale. Following a physical examination, the impression was Peyronie's disease, rather severe case. The urologist commented that it was likely idiopathic, but noted that the Veteran did have a history of one penile injection. The Board finds that the Veteran should be afforded a VA genitourinary examination to obtain a medical opinion as to whether the Veteran's Peyronie's disease, which was first symptomatic around December 2008 according to the Veteran's report, is idiopathic as suspected by the December 2009 urologist or secondary to the Veteran's use of Alprostadil injection, which was prescribed in May 2006 for erectile dysfunction associated with diabetes mellitus and used by at least June 2007. Before arranging the necessary VA examination, the AMC/RO should obtain ongoing VA treatment records from the Richmond VA Medical Center (VAMC) dated from March 2010 to the present. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain and associate with the claims file ongoing treatment records from the Richmond VAMC dated from March 2010 to the present that pertain to erectile dysfunction associated with diabetes mellitus. 2. After the above development has been completed, schedule the Veteran for a genitourinary examination conducted by a urologist to evaluate his erectile dysfunction associated with diabetes mellitus type I. The claims file and a copy of this remand must be made available to and be reviewed by the urologist in conjunction with the examination. The urologist must indicate in the examination report that the claims file was reviewed in conjunction with the examination. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed. The results of such must be included in the examination report. The urologist should state whether the Veteran has penile deformity with loss of erectile power. Regarding the diagnosed Peyronie's disease in particular, the urologist should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's Peyronie's disease is medically related to his diabetes mellitus, including his use of Alprostadil injection, which was prescribed in May 2006 and used by at least June 2007. A medical analysis and rationale are to be included with all opinions expressed. 3. After undertaking any other development deemed appropriate and ensuring that the requested actions are completed, the RO or AMC should readjudicate the claims of entitlement to a separate compensable rating for erectile dysfunction. If the benefit is not granted in full, the Veteran and his representative should be furnished with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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 Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs