Citation Nr: 1724059 Decision Date: 06/26/17 Archive Date: 07/10/17 DOCKET NO. 09-37 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to a disability rating in excess of 20 percent for the service-connected diabetes mellitus with diabetic retinopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in March 2010; a transcript of the hearing is associated with the electronic record. Most recently, in April 2016, the Board remanded the claim at issue for further development and adjudication. The matter has been returned to the Board and is now ready for appellate disposition. FINDING OF FACT The service-connected diabetes mellitus is not shown to be productive of a disability picture that is manifested by the required regulation of activities; diabetic retinopathy is a noncompensable complication of the diabetic process. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for the service-connected diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.119, Diagnostic Code 7913 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2016). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected diabetes mellitus is currently rated as 20 percent disabling under the provisions of Diagnostic Code 7913. 38 C.F.R. § 4.119. Under this Diagnostic Code 7913, a 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or hypoglycemic agent and restricted diet. Id. A 40 percent disability rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Id. A 60 percent rating is assigned for 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 diabetic care providers, plus complications that would not be compensated if separately evaluated. Id. A 100 percent rating is assigned for 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 not be compensated if separately evaluated. Id. Regulation of activities is defined by VA as "avoidance of strenuous occupational and recreational activities" and is tied to control of blood sugar, not to physical capacity, as strenuous activity can lead to fluctuation of blood sugar levels and trigger episodes of ketoacidosis or hypoglycemia. Moreover, compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a total evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. In the instant case, erectile dysfunction and peripheral neuropathy of the bilateral upper and lower extremities have been granted separate evaluations. These matters are not currently before the Board. The Veteran has argued for a separate compensable evaluation for diabetic retinopathy. In the February 2016 Appellant's Post-Remand Brief, the Veteran's representative asserted that the Veteran's diabetic retinopathy had developed into vision loss, which was support by medical records showing the need for continued annual eye examinations as a result. In April 2016, the Board remanded the matter for an eye examination to determine whether there was any impairment in central visual acuity or visual fields resulting from diabetic retinopathy, and if so, the examiner was to conduct the necessary testing. The requested eye examination was conducted in June 2016, wherein the Veteran's vision was 20/40 right, 20/25 left at distance and near with correction. The Veteran had mild cataracts that were not visually significant. He had non-high risk proliferative diabetic retinopathy right and mild non-proliferative diabetic retinopathy left. He had macular edema bilaterally that was not significant. He had dry eyes that was consistent with intermittent near blur. He also had peripheral retinal hemorrhages that were not likely from diabetes. There was no anatomical loss, light perception only, extremely poor vision, or blindness of either eye. The examiner opined that the Veteran did not have a visual field defect or a condition that may result in a visual field defect and did not conduct visual field testing using the Goldmann Perimeter Chart. The examiner further explained that he had reviewed the Veteran's diabetic eye examination reports from Dr. W from 2007 to Jan 2016 and there were no diabetic complications that warranted prescription of bedrest. Moreover, the examiner found that the last two examinations showed an improvement in degree of diabetic retinopathy. While background retinopathy was noted in May 2015, there was no diabetic retinopathy on examination in January 2016. In an addendum opinion, the examiner further explained that Goldmann field of vision test was not necessary since the Veteran did not have any visual field defects from diabetic retinopathy and had no conditions that would have required a visual field test. He explained that diabetic retinopathy, by itself, does not cause visual field loss and therefore, there was not an indication to do visual field testing. The Board notes that in reviewing Diagnostic Code 6006 for diabetic retinopathy, it will be rated separately based on incapacitating episodes, and the examiner clearly indicated that the Veteran had no incapacitating episodes. 38 C.F.R. § 4.79. Consequently, diabetic retinopathy remains a noncompensable complication of diabetes mellitus. There is no dispute the Veteran's service-connected diabetes mellitus has required the use of oral medications, restricted diet, and insulin for control. What is in question, however, is whether the Veteran has a regulation of activities. The October 2008 VA examiner found that the Veteran had significant restriction of activities during the prior year for various health issues, including the diabetes; however, he found that the Veteran's diabetes only had a mild effect on his activities of daily living. The Veteran underwent extensive back surgery in January 2008 for spinal stenosis with radiating leg pain. The Veteran also had significant cardiac issues related to atrial fibrillation and had a pacemaker implanted in February 2008. The Veteran denied any episodes of diabetic ketoacidosis and reported few episodes of hypoglycemia which he managed at home. He reported no hospitalizations for either ketoacidosis or hypoglycemia. A January 2010 physician's statement from Dr. HM indicated the Veteran's diabetes mellitus required insulin, restricted diet, and regulation of activities. The doctor was to provide information regarding the regulation of activities in the remarks section. However, he only stated that the Veteran had multiple medical conditions including spinal stenosis, depression, and heart disease. The doctor also noted that he had visual, cardiovascular, neurological, and renal complications due to diabetes mellitus. Dr. HM did not indicate that the Veteran had to avoid strenuous occupational and recreational activities in order to control his blood sugar. At the March 2010 Board videoconference hearing, when asked if his doctor had ever told him that he needed regulation of activities in order to keep his diabetes under control, he replied "I do not believe so." BVA transcript at 6. The January 2010 doctor's statement regarding regulation of activities, noted above, was provided at the hearing. The Veteran testified that he had not been hospitalized for his diabetes. VA outpatient treatment records dated in August 2010 showed he walked on weekends. An entry dated in April 2011 revealed that he walked his dogs daily. In June 2011 providers noted that the Veteran went on an extended motorcycle trip to Washington DC. In May 2012, the Veteran had worse hemoglobin A1C levels over the prior month because he was not watching his diet or engaging in much physical activity. Entries dated in June 2012 and March 2013 note that the Veteran was instructed to increase exercise. On VA examination in April 2014, the examiner found that the Veteran's diabetes did not require regulation of activities as part of medical management of diabetes mellitus because he was not prone to hypoglycemia. The examiner explained that the Veteran's activities were limited due to his diabetic neuropathy, but that was a result of the neuropathy and not part of any treatment plan. The Veteran saw a diabetic care provider for keloacidosis and hypoglycemia less than two times per month. He had no hospitalizations for diabetes related issues in the year prior to the examination. Based on the foregoing, there is no evidence of record to support an increase to 40 percent disabling. Specifically, there has been no persuasive evidence showing that the diabetes mellitus alone more nearly approximates a disability picture that includes a required regulation of activities. 38 C.F.R. § 4.119. In reaching the above determination, the Board has also considered the Veteran's statements that a higher rating is warranted. In this case, the Veteran's statements are competent evidence as to his symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Indeed, these statements have been considered by both the Board and the VA examiners. His statements, however, are not competent evidence to identify a specific level of disability relating his diabetes mellitus to the appropriate rating criteria. Importantly, the medical findings, as provided in the VA examination reports, as well as VA outpatient treatment records, considered the Veteran's statements, to include such reports as changes in daily routine and poorly controlled blood sugars, as to the manifestations of his diabetes, and directly addressed the criteria under which the Veteran's diabetes mellitus has been evaluated. All potentially applicable diagnostic codes have been considered, and the Veteran is not entitled to a rating in excess of the rating assigned, to include any "staged ratings." See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Hart, supra. As the preponderance of the probative evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim must be denied. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A disability rating in excess of 20 percent for the service-connected diabetes mellitus is denied. ____________________________________________ K. L. WALLIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs