Citation Nr: 1633093	
Decision Date: 08/19/16    Archive Date: 08/26/16

DOCKET NO.  11-01 037	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an increased rating in excess of 20 percent for the service-connected diabetes mellitus type II with erectile dysfunction (ED), diabetic retinopathy, and cataracts.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Tunis, Associate Counsel





INTRODUCTION

The Veteran served on active duty from November 1966 to November 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

In a July 2015 decision, the Board remanded the issue for further development. As will be discussed further below, the RO has sufficiently complied with the July 2015 remand directives, and the matter is now appropriately before the Board once again. See Stegall v. West, 11 Vet. App. 268 (1998).

The Board notes that diabetic peripheral neuropathy (associated with diabetes mellitus type II) of the bilateral lower extremities and of the bilateral upper extremities, and coronary artery disease with stent placement (associated with diabetes mellitus type II) have been service connected and assigned compensable ratings. The Veteran, however, has only appealed the rating assigned to diabetes mellitus type II with erectile dysfunction (ED), diabetic retinopathy, and cataracts. Therefore, the issues of diabetic peripheral neuropathy of the bilateral lower extremities and of the bilateral upper extremities, and coronary artery disease with stent placement are not currently on appeal before the Board.

The Board has reviewed the Veteran's records maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS).


FINDINGS OF FACT

1. For the entire rating period, the management of the Veteran's diabetes mellitus type II required the use of insulin, a restricted diet, and regulation of activities.

2. The diabetic complications of ED and mild diabetic retinopathy and cataracts were manifested by loss of erectile power with no penis deformity and corrected distance vision and corrected near vision of 20/40 or better with no incapacitating episodes during the past 12 months, respectively.


CONCLUSION OF LAW

The criteria for an increased rating in excess of 20 percent for type II diabetes mellitus, including for separate compensable ratings for ED, diabetic retinopathy, and cataracts, are not met or approximated for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.119, Diagnostic Code (DC) 7913 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In this case, notice was provided to the Veteran. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, VA and the Veteran's respective duties for obtaining evidence, and VA's practices in assigning disability ratings and effective dates. Further, the appeal for a higher initial rating for diabetes mellitus type II with erectile dysfunction (ED), diabetic retinopathy, and cataracts, arises from a disagreement with the initial evaluation following the grant of service connection. Since the Veteran's claim was for service connection, and service connection was granted, the claim was substantiated. Therefore, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required.

The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA examination reports, VA treatment records, private treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran.

The Veteran was provided VA examinations of his diabetes in September 2009, April 2011, and September 2015. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran was also provided VA examinations of his eyes in September 2009, March 2011, and September 2015; and a VA examination of his ED in September 2015. The Board notes that the examiners provided with an accurate history, the Veteran's history and complaints were recorded, and the examination reports sets forth detailed examination findings. As such, the examination reports are adequate to decide the claim. Thus, further examination is not necessary regarding the issue of entitlement to a higher initial disability rating the Veteran's diabetes mellitus type II with erectile dysfunction (ED), diabetic retinopathy, and cataracts.

Therefore, because VA has obtained all relevant identified records and provided adequate medical examinations, the Board finds that VA's duty to assist has been satisfied.

II. Compliance with Stegall

As noted in the Introduction, in July 2015, the Board previously remanded the claim for further development. In the July 2015 remand, the Board instructed the RO to schedule the Veteran for a VA examination to determine the current severity of his service-connected type II diabetes mellitus, with ED, diabetic retinopathy, and cataracts. The examiner was to specifically determine the manifestations of the Veteran's disability, to include insulin, restricted diet, regulation of activities, episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations or visits to a diabetic care provider, or progressive loss of weight and strength.

In accordance with the remand directives the Veteran was afforded VA examinations of his diabetes, eyes, and ED, in September 2015. The examiners clearly noted the review of the Veteran's diabetes, to also include his eyes and ED, claims file, and medical history. The examiners noted the Veteran's assertions as to his current symptoms and manifestations, providing a detailed report of the Veteran's manifestations, to include his use of insulin, restricted diet, regulation of activities, functional abilities, and associated disabilities and symptoms.

Also in accordance with the remand directives, in November 2015, the AOJ readjudicated the claim and provided the Veteran with a supplemental statement of the case (SSOC). 

Therefore, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

III. Disability Rating Legal Criteria

Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

In determining the disability rating, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. 
§§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. 

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 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. 

Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505  (2007). 

Service connection for diabetes mellitus type II as associated with herbicide exposure with a 20 percent rating effective from April 23, 2009, was established in an September 2009 rating decision. The Veteran contends that an increased rating in excess of 20 percent for diabetes mellitus type II is warranted because management of diabetes mellitus has worsened and now requires insulin shots approximately four times per day. 

For the entire rating period on appeal, diabetes mellitus type II has been rated at 20 percent under the criteria at 38 C.F.R. § 4.118, DC 7913. Pursuant to Note (1) to DC 7913, the noncompensable complications of ED, mild diabetic retinopathy, and cataracts are considered part of the diabetic process and contemplated by the 20 percent rating under DC 7913. 

Under DC 7913, diabetes mellitus which is manageable by restricted diet only is rated at 10 percent. Diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet, is rated at 20 percent. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) is rated at 40 percent. Diabetes mellitus 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 rated, is rated at 60 percent. Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated, is rated at 100 percent.

Note (1) to DC 7913 provides that compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119. 

After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that management of diabetes mellitus type II requires a regulation of activities as required for a 40 percent rating under DC 7913. Throughout the rating period on appeal, management of diabetes mellitus type II required the use of insulin (either once or twice daily) or an oral hypoglycemic agent, and a restricted diet, which is consistent with the 20 percent rating criteria under DC 7913. See September 2009, April 2011, and September 2015 VA examinations. 

The Veteran does not contend, and the evidence does not otherwise indicate, that management of diabetes mellitus type II also required avoidance of strenuous occupational and recreational activities, which is the additional criterion necessary for the next higher 40 percent schedular rating. See Id.; see also Camacho v. Nicholson, 21 Vet. App. 360 (2007) (holding that the criteria for rating diabetes mellitus are conjunctive, and that each element of the criteria is needed to meet the requirements for the specified evaluation). In fact, at the April 2011 examination, the Veteran reported no recent weight changes and reported following up with his provider every six months. Although in a January 2015 VA treatment record, the Veteran noted that he is trying to increase his disability and was told that he needs his doctor to write a statement that his diabetes is restricting his activities, the January 2015 VA treatment record further notes that the Veteran continues to work as a mechanic and that his diabetes related neuropathy makes it difficult to handle tools and tubes. Indeed, instead of management of diabetes mellitus type II requiring avoidance of strenuous occupational and recreational activities, the Veteran was noted to have been instructed to participate in MOVE!, a weight management program. See September 2013 VA treatment record. Furthermore, at the September 2015 VA examination, the Veteran noted that he visits his care provider less than 2 times per month, with 0 episodes of hypoglycemic reactions or ketoacidosis requiring hospitalization over the last year, and the examiner reported no loss of weight of strength as a result of his diabetes mellitus, with no functional impact. For these reasons, the weight of the evidence is against a finding that a rating in excess of 20 percent under DC 7913 for diabetes mellitus is warranted for any period. 38 C.F.R. §§ 4.3, 4.7. 

Moreover, the Veteran has not contended, and the weight of the evidence does not otherwise show, that he is entitled to separate compensable rating for ED, diabetic retinopathy, or cataracts. As noted above, noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119. In this case, the weight of the evidence is against a separate compensable rating for ED. Under DC 7522, a single (and maximum) 20 percent disability rating is provided for penis deformity with loss of erectile power. Because the evidence shows loss of erectile power with no penis deformity, the Board finds that a separate, compensable rating is not warranted for ED. See, e.g., September 2015 VA examination (noting the Veteran's normal anatomy of the penis and testes). 

The weight of the evidence is also against a separate compensable rating for diabetic retinopathy or cataracts. Diabetic retinopathy is rated under 38 C.F.R. § 4.79, DC 6006, which directs that eye disabilities are to be rated on the basis of either visual impairment or on incapacitating episodes according to a General Rating Formula, whichever results in a higher rating. Under DC 6027 for cataracts, pre-operative cataracts, which is the case here, are rated based on visual impairment. Throughout the rating period, the evidence demonstrates visual acuity of 20/40 or better with no incapacitating episodes during the past 12 months, which is consistent with a noncompensable (i.e., 0 percent) schedular rating. See, e.g., September 2015 VA examination. For these reasons, the Board finds that a separate compensable rating for diabetic retinopathy or cataracts is not warranted.

IV. Extraschedular Referral Analysis

The Board has further considered whether the increased rating appeal warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. 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, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. If those criteria are not inadequate, the analysis does not need to proceed any further.

In this case, the Board does not find any symptoms or functional impairment that are not already encompassed by the 20 percent schedular rating under DC 7913 for diabetes mellitus. For the entire rating period, diabetes mellitus was managed with insulin or an oral hypoglycemic agent, and a restricted diet with no regulation of activities. The schedular criteria under DC 7913 for diabetes mellitus consider the treatment required for management of diabetes mellitus at various levels of severity and/or impairment. The schedular criteria specifically provide for a 20 percent rating for diabetes mellitus managed with insulin (or an oral hypoglycemic agent) and a restricted diet; therefore, the symptoms and/or manifestations and functional impairments of diabetes mellitus demonstrated in this case are fully contemplated in the schedular criteria for the 20 percent schedular rating for the rating period. 

As explained above, because manifestations of ED, diabetic retinopathy, and cataracts are noncompensable under DC 7522, DC 6006, and DC 6027, respectively, they are considered part of the diabetic process and are contemplated in the 20 percent schedular rating. This is the scheme of the schedular rating criteria. The schedular rating criteria provide specific criteria for each of these disabilities should any of these diabetic complications become separately compensable. In such case, these diabetic complications would be rated separately under the specific diagnostic code (schedular rating criteria) for rating that disability. The Veteran also received special monthly compensation for loss of use of a creative organ for the ED for the entire rating period, and special monthly compensation under 38 U.S.C. § 1114, subsections and 38 C.F.R. § 2.250(i) on account of a 100 percent rating for prostate cancer and additional service-connected disabilities independently ratable at 60 percent or more from January 2015. For these reasons, the Board finds that the schedular criteria are not inadequate to rate diabetes mellitus, including the recognized diabetic complications that are not yet separately compensable, and referral for consideration of extraschedular rating is not necessary.

Furthermore, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when there is "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. 

In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities create such an exceptional circumstance to render the schedular rating criteria inadequate. There is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. For these reasons, the Board finds that the schedular rating criteria are adequate, and no extraschedular referral is warranted in this case. 38 C.F.R. § 3.321(b)(1).


ORDER

Entitlement to an increased rating in excess of 20 percent for the service-connected diabetes mellitus type II with erectile dysfunction (ED), diabetic retinopathy, and cataracts, is denied.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs