Citation Nr: 1341190 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 07-14 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased evaluation for Type II diabetes mellitus, currently evaluated as 40 percent disabling. 2. Entitlement to a compensable evaluation for erectile dysfunction. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. M. Barnard INTRODUCTION The Veteran served on active duty from October 1965 to October 1968. This appeal arose before the Board of Veterans' Appeals (Board) from an April 2006 rating decision from the Huntington, West Virginia, Department of Veterans Affairs (VA), Regional Office (RO) that had confirmed the 20 percent evaluation assigned to the service-connected diabetes mellitus and which had granted special monthly compensation (SMC) based on loss of use of a creative organ, both effective February 28, 2005 (the date of his claim). During the pendency of this appeal, a rating action dated in March 2007 granted a 40 percent disability evaluation for the diabetes with erectile dysfunction and onychomycosis, effective February 28, 2005. However, as this grant does not represent a total grant of the benefits sought on appeal, the claims for increase remain before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to service connection for posttraumatic stress disorder (PTSD) appears to have been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's diabetes mellitus requires insulin, a restricted diet and some self-regulation of activities and with occasional hypoglycemic episodes. 2. The Veteran's erectile dysfunction is manifested by complete loss of use; however, there is no evidence of penile deformity. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for the service-connected diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 &2012); 38 C.F.R. §§ 3.159, 3.321, 4.2, 4.3, 4.119 Diagnostic Code (DC) 7913 (2013). 2. The criteria for a compensable evaluation for the service-connected erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 &2012); 38 C.F.R. §§ 3.159, 3.321, 4.2, 4.3, 4.20, 4.31, 4.115a, DC 7522 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall considerations This case was remanded by the Board for further evidentiary development in February 2011. The RO was to request information as to any treatment for the Veteran's diabetes mellitus and erectile dysfunction since 2005. He was then to be afforded a VA examination. The Board is obligated by law to ensure that the RO complies with its directives. "[A] remand by...the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." In other words, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). After reviewing the record, the Board finds that there has been substantial compliance with the remand. The Veteran was afforded a VA examination in March 2011. In April 2011, treatment records from two identified private physicians were obtained and associated with the claims folder. Because the Board had instructed that the VA examination be conducted after identified records were obtained, the claims folder was referred back to the examiner for any required addendums to the March 2011 findings. None were required. While the Veteran's Virtual VA e-Folder does contain some VA treatment records from 2012, these do not demonstrate symptoms that would meet the requirements for increased evaluations for either the diabetes or the erectile dysfunction; having a VA examiner review these records would be futile since they do not support increased evaluations. As a consequence, it is found that the RO has substantially complied with the Board's instructions and that no further remand is necessary. VCAA The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in April 2005 and in February and April 2011. This correspondence advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). It also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that the Veteran was afforded VA examinations in March 2006 and in March 2011, with an April 2012 addendum. See 38 C.F.R. § 3.159(c)(4). These opinions were rendered by medical professionals following a thorough examination and interview of the appellant and review of the claims file. These examiners obtained an accurate history and listened to the appellant's assertions. The examiners laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Applicable laws and regulations Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2013). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2013). Increased evaluations Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings be assigned to organic disease and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are 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). Factual background and analysis Diabetes mellitus The Veteran alleges that his service-connected diabetes mellitus should be awarded a disability evaluation in excess of 40 percent. He states that he suffers from repeated hypoglycemic reactions, thus warranting a higher evaluation. The pertinent evidence of record includes private treatment records from 2004 and 2005. On September 24, 2004, it was noted that the Veteran was taking Avandia, Glipizide, and Glucophage to control his diabetes. It was noted that he was to be seen in three months for a re-check of his condition. In February 2005, it was again noted that he was to be seen in three months time. The Veteran was afforded a VA examination in March 2006. The examiner noted that the claims folder had been reviewed. The Veteran was noted to have had diabetes since 1999. He did not regularly check his blood sugar levels at home. He denied any episodes of ketoacidosis and well as any periods of hospitalization. He did state that he had hypoglycemic reactions after any exertion. He indicated that he had to restrict activities since exertion caused low blood sugar; these activities included such things as mowing the lawn and lifting heavy objects for 15 to 20 minutes. He was taking Metformin, Glipizide, Avandia and Lantus. He saw his diabetic care provider once every 3 months. The diagnosis was diabetes mellitus with oral hypoglycemics and Insulin. The examiner again noted that the Veteran had hypoglycemic reactions following strenuous activity, which has caused him to limit his activities. The Veteran submitted treatment record from his private physician, G.V., dating from 2008 to 2010. These records noted that the Veteran had poor control over his diabetes, with glucose running over 200. This physician noted that the Veteran needed to watch his diet and increase his exercise. He was seen roughly every two months. In March 2009, it was commented that hypoglycemic reactions were rare. However, in May 2009, he had a hypoglycemic reaction when leaving the office; his blood sugar was noted to be 72. By late 2010, the Veteran's diabetes was referred to as uncontrolled. VA re-examined the Veteran in March 2011. Again, the claims folder was reviewed. He was taking Glipizide, Lantus and Humalog for treatment of his diabetes. He had never been hospitalized for hypoglycemia and had never experienced any ketoacidosis. He had occasional fluctuations of his blood sugar levels that could cause confusion. He had two episodes a week when he would awaken in a sweat; he would drink a glass of orange juice and would feel better. He was on two types of Insulin as well as oral medications, but he still had poor control of his condition. While he had hypoglycemic episodes, mostly in the morning, these would resolve with oral intake. The examiner again noted that he had never been hospitalized due to his diabetes, and that he saw his diabetic care provider every three to six months. The Veteran was seen by VA on an outpatient basis in 2012. On January 4, he complained that his blood sugar levels would fluctuate. Instead of taking a sliding dose of Insulin it was recommended that he take a consistent dose. It was noted this blood sugar that day was low (64). On March 9, he reported that the night before his blood sugar had dropped to 57; he drank some orange juice and felt better. He commented that this would happen about twice a month. On September 12, the examiner noted that the Veteran's diabetes was not adequately controlled, although there was some improvement. According to the applicable rating criteria, a 40 percent evaluation for diabetes mellitus requires the taking of Insulin, a restricted diet, and the regulation of activities. A 60 percent evaluation requires Insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring 1 to 2 hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913 (2013). After reviewing the evidence of record, the Board finds that a higher disability evaluation for the service-connected diabetes mellitus is not warranted. At no time during the appellate period has the Veteran's condition met the requirements for the assignment of a 60 percent disability evaluation. The Veteran's diabetes has required the taking of Insulin, the restriction of his diet and the regulation of activities. However, there is no indication that the Veteran has ever had any episodes of ketoacidosis, and while he has occasional episodes of hypoglycemia, particularly in the morning or after strenuous activities, there is no indication in the record that these have required hospitalization or necessitated visits to his diabetic care provider at least twice a month. To the contrary, the record indicates that these episodes would resolve themselves after oral intake, especially orange juice, but they have never required hospitalization or visits to his doctor twice a month. In fact, he only sees his diabetic care provider every 3 to 6 months. Therefore, it is clear that he does not meet the schedular requirements for the assignment of a 60 percent disability evaluation. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Erectile dysfunction The Veteran has claimed that his service-connected erectile dysfunction should be assigned a compensable evaluation. He asserts that he is completely unable to have an erection and that various medications have failed to help. The Veteran has been noted to have erectile dysfunction. There were multiple factors leading to this disorder, to include his diabetes mellitus and his hypertension. He was afforded a VA examination in March 2006, at which time he stated that this condition had begun in 2002, and that it had gradually worsened since that time. He stated that he was unable to have vaginal penetration with ejaculation. He had tried Viagra without response. He had not tried injections or pumps. The examination found an uncircumcised penis without lesions or discharge. He had two descended testicles without tenderness. The diagnosis was erectile dysfunction. VA re-examined the Veteran in March 2011. He noted the onset of the erectile dysfunction approximately nine years before. For the past 5 years, he stated that he has had no function at all. He was unable to have an erection even with medication. The Veteran indicated that vaginal penetration and ejaculation were not possible. The genital examination was completely benign. The penis was not circumcised and the testicles were not atrophied. The examiner in April 2012 remarked that there had been no change in this condition since the original examination. The Veteran's erectile dysfunction is rated, by analogy, under DC 7522. This provides for a 20 percent disability evaluation when there is penis deformity with loss of erectile power. While there is no dispute that the Veteran has erectile dysfunction (in fact, he is in receipt of special monthly compensation for the loss of use of a creative organ), there is no suggestion in the evidence of record that he has any deformity of the penis. To the contrary, his genital examinations have all noted that he has a normal-appearing penis, without any tenderness or atrophy of the testicles. There is simply no evidence to warrant a 20 percent disability evaluation pursuant to DC 7522. The Board has also considered all other DCs under the schedule for rating the genitourinary system. None of these appear to be applicable to the Veteran's situation; specifically, there is no indication that the service-connected erectile dysfunction has caused renal or voiding dysfunctions that would warrant compensation under 38 C.F.R. § 4.115a (2013). In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular consideration The Board has also considered the potential application of various other provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and is therefore 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 attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary of Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected diabetes mellitus or erectile dysfunction are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to an evaluation in excess of 40 percent for the service-connected diabetes mellitus is denied. Entitlement to a compensable evaluation for erectile dysfunction is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs