Citation Nr: 1751992 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 09-26 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD). 2. Entitlement to a rating in excess of 20 percent for Type II diabetes mellitus with erectile dysfunction. 3. Entitlement to a total disability rating based on individual Unemployability (TDIU). REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney-at-Law ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to February 1969 to include service in the Republic of Vietnam (Vietnam). This appeal comes to the Board of Veterans' Appeals (Board) from an appeal of a May 2008, rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2011 and November 2013, the Board remanded the claims for further development. The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's COPD was not present in service or for many years thereafter, and there is no competent evidence linking COPD to service, including to in-service herbicide exposure in Vietnam. 2. The Veteran's COPD is not proximately due to or aggravated by his service-connected disabilities. 3. The Veteran's service-connected diabetes with erectile dysfunction requires a restricted diet, daily insulin, oral hypoglycemic agent, and oral medication without regulation of activities. CONCLUSIONS OF LAW 1. The Veteran's COPD was not incurred in service, and it may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. COPD is not secondary to, or aggravated by, a service-connected disability. 38 U.S.C. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 3. The criteria for a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 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). VA's duty to notify was satisfied by a letter dated in February 2008. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also met its duty to assist the Veteran. VA obtained all relevant medical records and evidence identified by the Veteran. These records have been associated with the claims file. VA further afforded the Veteran appropriate VA medical examinations in August 2011, June and September 2012, and April 2016. II. Stegall compliance The Board finds there has been substantial compliance with its June 2011 and November 2013 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) III. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2017). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a) (West 2014); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam War period. 38 C.F.R. § 3.307. For these Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in-service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Veteran seeks service connection for a respiratory disorder. He asserts that his COPD is directly due to his service or is proximately due to or aggravated by his service-connected disabilities. See VA Form 646 entered in VBMS in January 2013; October 2009 Substantive Appeal. The Board notes that COPD is not subject to presumptive service connection as due to herbicide agent exposure. 38 C.F.R. §§ 3.307(a)(6); 3.309(e). Additionally, COPD is not a "chronic disease" for purposes of 38 C.F.R. §§ 3.303(b); 3.309(a). As such, the Board analyzes service connection for COPD under a direct and secondary basis. The Board notes that the Veteran has a current diagnosis of COPD. As such, element (1) under Shedden and Wallin is met. See August 2011, September 2012, and April 2016 VA Examinations. With respect to the presence of an in-service event, injury, or disease, the Veteran has asserted that when he was in service, he was exposed to and inhaled burnt human waste and dust. See VA Form 646 entered in VBMS in January 2013. Accordingly, the Board finds that an in-service event, injury, or disease, is met. Additionally, the Veteran is service-connected for diabetes mellitus, CAD, PTSD, diabetic nephropathy, tinnitus, bilateral hearing loss, and a scar. Accordingly, the requirements of Wallin element (2) have been met. Therefore, addressing the third and final element for service connection, known as the nexus element, the evidence of record must show an etiological nexus between current COPD and an in-service incurrence or injury. The pertinent inquiry is whether the Veteran's COPD was caused by any incident of service. The Board concludes that it was not. On the Veteran's October 1965 enlistment exam: Report of Medical History and the February 1969 dep. Exam: Report of Medical History, the Veteran noted that he did not have chronic cough, shortness of breath or asthma. During service, there were no complaints, treatments, or diagnosis of COPD or any other lung disabilities. In his February 1969 Dep. Exam, the Veteran noted that his lungs and chest were normal. Additionally, the Veteran's enlistment and Dep chest x-rays were negative. See Enlistment and Dep exams, pages 4, 10, 14, 19, and 22 entered in VBMS in June 2016. In June 2008, a private examiner noted that the Veteran had "troubles with COPD, largely associated with his extensive exposure to second-hand smoke. . . ." See Medical Treatment Record-Non-Government Facility entered in VBMS in July 2008, page 3. In August 2011, the Veteran underwent a VA examination to determine the nature and etiology of his COPD. In 2003, the Veteran stated that he began experiencing shortness of breath with activities, but he was not diagnosed with COPD until 2005. Since its onset, the Veteran stated that the COPD has gotten progressively worse. The examiner confirmed the COPD diagnosis. The examiner opined that it is less likely than not that the Veteran's COPD is due to service or service-connected conditions. The examiner further stated that COPD primarily refers to obstruction in the lungs caused by chronic asthmatic bronchitis and emphysema. The examiner further stated that the risk factors include tobacco smoking, dust, chemical fumes, air pollution, age and genetics. The examiner opined that the Veteran's risk factors appeared to be tobacco smoking and genetics. See August 2011 VA examination at 15 and18-19. From May 2012 to December 2015, the Veteran was treated for his COPD at the West Palm Beach VAMC. See Capri entered in VBMS in January 2016, page 10, 196. The examiners noted that the Veteran had severed COPD and was on home oxygen. See id. at 90, 96. The Veteran was treated for COPD until April 2016. See also Capri entered in VBMS in April 2016, page 6, 886. In September 2012, the Veteran was afforded another VA examination. The examiner performed an in-person examination. The Veteran stated that he smoked one pack of cigarette a day for about 15 years. He further stated that he quit about 40 years ago. The examiner confirmed the Veteran's COPD diagnosis. The examiner opined that it is less likely as not (less than 50/50 probability) to have been caused or aggravated by the Veteran's military service-either directly, presumptively, or secondary as either caused or chronically aggravated by a service-connected disability, which now includes CAD in addition to type II diabetes mellitus, and PTSD. The examiner further stated that none of the service-connected conditions were known to cause COPD. Additionally, there was no evidence of COPD in service. The examiner further stated that the Veteran's history of cigarette smoking was the most likely cause of his COPD. In November 2013, the Board found the September 2012 examiner's rationale to be inadequate. So, the claim was remanded for a new VA examination. In April 2016, the Veteran was afforded a VA examination to determine the nature and etiology of his COPD. The examiner reviewed the claims file and performed an in-person examination. The examiner performed x-rays which confirmed that the Veteran had COPD. The examiner concluded that it is less likely than not (less than 50 percent probability) that the Veteran's respiratory disorder, in particular his COPD, was incepted during service, or is otherwise related or attributable to his service, including his presumed exposed to AO in Vietnam. The examiner stated the Veteran's service medical record showed no complaints or diagnosis of a respiratory condition or COPD. Also, there were no medical records for many years immediately after the service to establish the chronicity of the respiratory disorder. The examiner also stated that it is less likely than not (less than 50 percent probability) that the Veteran's COPD is proximately due to or the result of a service-connected disabilities to include CAD, PTSD, and diabetes mellitus. The examiner stated that peer review medical literature supported the conclusion that the Veteran's COPD condition and the service-connected conditions are etiologically, anatomically, pathophysiologically different and cannot be causally related. The Board finds that the most probative evidence of record demonstrates that the Veteran's COPD is not related to active service, but rather more likely due to his history of cigarette smoking. The August 2011 and April 2016 VA medical opinions are probative as the examiners considered the Veteran's most recent medical history and provided sufficient rationale for the opinions provided. Accordingly, the opinions, collectively, are found to carry significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). Additionally, the Veteran was not diagnosed with COPD until 2005, over 34 years after his discharge from service. The fact that there were no records of any complaints or treatment involving the Veteran's COPD for many years after service weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). The Board notes that the Veteran was continuously treated for his COPD; however, the treatment records made no reference to the onset and etiology of the Veteran's COPD. The Board also notes that to the extent that tobacco use may be a causative factor in the development of current COPD, service connection may not be granted because of tobacco use, even if such tobacco use began in service. See 38 U.S.C. § 1103 (West 2014); 38 C.F.R. § 3.300 (2017). For claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C. §§ 1103(a), 1110. The Board also acknowledges that the Veteran has asserted that his COPD is related to service. The Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's COPD is related to service, the Board finds that evidence is not competent as the Veteran is not shown to have the required training to diagnose respiratory disabilities and opine as to their etiology. In light of the foregoing, the Veteran's claim for COPD is denied. Given that the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is inapplicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Next, the Board considers whether service-connection is warranted for a respiratory disorder on a secondary basis. Both the August 2011 and the April 2016 examiners opined that it is less as likely as not that the Veteran's COPD is due to service-connected conditions. The examiners stated that according to the medical literature, there are no studies showing that CAD, diabetes mellitus, or PTSD cause COPD. The April 2016 examiner stated that the service-connected disabilities and COPD are etiologically, anatomically and pathophysiological different and cannot be causally related. Again, the Board has considered the Veteran's reported history of symptomatology related to his respiratory disorder. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through ones senses. See Layno, 6 Vet. App. at 470. Nevertheless, the Board finds that the most probative evidence of record demonstrates that the Veteran's respiratory disorder is not caused or aggravated by the service-connected disabilities. The August 2011 and April 2016 VA etiological opinions are probative as the examiners considered the Veteran's medical history and lay statements, and provided sufficient rationales for the opinions provided. Accordingly, these opinions are found to carry significant weight. See Nieves-Rodriguez, 22 Vet. App. at 302-04. Based on the evidence of record, there is no probative and competent evidence that demonstrates the Veteran's current respiratory disability is caused by or aggravated by the result of the service-connected disabilities. See 38 C.F.R. § 3.310. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. VA has a duty to acknowledge and to 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. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran's diabetes mellitus is currently assigned a 20 percent rating pursuant to Diagnostic Code 7913. See 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent disability rating is warranted for diabetes mellitus that requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. Id. To satisfy the criteria for the next highest disability rating of 40 percent, diabetes mellitus must require insulin, a restricted diet, and regulation of activities. Id. A 60 percent disability rating is warranted for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalization per year or twice monthly visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. Id. A 100 percent disability rating is warranted when diabetes mellitus requires 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. Id. The term "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." See id. (defining the term within the criteria for a 100 percent rating); see also Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Establishing the "regulation of activities" criterion requires competent medical evidence showing that restriction of occupational and recreational activities is necessary to control a claimant's diabetes. See Camacho, 21 Vet. App. at 363-64. The rating criteria for diabetes mellitus are successive, meaning that the evaluation for each higher disability rating includes the criteria of each lower disability rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Thus, if a component is not met at any one level, the claimant can only be assigned a disability rating based on the level that does not require the missing component. Id. Compensable complications of diabetes are to be evaluated separately unless they are a part of the criteria used to support a 100 percent disability rating for diabetes mellitus. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1. Noncompensable complications of diabetes mellitus are considered a part of the diabetic process under Diagnostic Code 7913. Id. The Veteran asserts that his diabetes mellitus with erectile dysfunction is more severe than the current rating assigned. See February 2008 Statement in Support of Claim. In August 2007, the Veteran was seen at the Tampa VAMC for his diabetes. See Capri entered in VBMS in April 2008. The examiner noted that the Veteran's diabetes mellitus was not well controlled. The Veteran was not compliant with his diet. See id. at 20. In October 2007, the Veteran was treated at the Tampa VAMC for his diabetes. See Medical Treatment Record-Government Facility entered in VBMS in November 2011, pages 20, 114. The examiner noted that the Veteran led a sedentary lifestyle due to chest pain, shortness of breath, and hip pain. He admitted to liberal fat diet whatever his girlfriend cooked. See id. at 20. The examiner reinforced strategies for CV risk factor modification especially diet and regular exercise as tolerated. See id. at 23 and 60. In May 2008, the Veteran was afforded a VA examination to determine the severity of his diabetes. The Veteran denied a history of hospitalization or surgery, pancreatic trauma and neoplasm, episodes of hypoglycemia reaction or ketoacidosis. The Veteran also denied peripheral vascular disease (Lower Extremities), cardiac disease, visual disorders, neurovascular disease, peripheral neuropathy, diabetic nephropathy, skin disorders, and gastrointestinal disorders. The Veteran stated that he experienced erectile dysfunction which was caused by his medication. He also had CAD and hypertension. The examiner stated that the hypertension was not a complication of the Veteran's diabetes. The Veteran also stated that he was on a special diet. The examiner found the Veteran's skin and left and right extremity to be normal. The examiner confirmed the diabetes diagnosis. The examiner also diagnosed erectile dysfunction but stated that it was due to the Veteran's heart medication and low testosterone and not his diabetes. In September 2008, the Veteran was seen at the Tampa VAMC: Primary Care E & M Note. The examioner noted that the Veteran's diabetes was uncontrolled. The examiner discussed the possible need for insulin. However, the Veteran had strong feeling about insulin and stated that he would not last a year if he started on insulin. See also Capri entered in VBMS May 2009 at 14. In January 2009, a VA staff physician examined the Veteran. The physician noted that the Veteran's diabetes was uncontrolled. The physician counseled the Veteran on diet and exercise. See also Capri entered in VBMS May 2009 at 4. In June 2011, the Board remanded the claim in order to reassess the severity of the Veteran's diabetes mellitus with erectile dysfunction. In August 2011, the Veteran was afforded a VA examination to determine the severity of his diabetes. The examiner reviewed the claims file and performed an in-person examination. The Veteran stated that his blood sugar was high and would possibly be placed on insulin. The Veteran did not have any restrictions of activities due to his diabetic condition. The Veteran stated that he was hospitalized in 2004 for CABG. The Veteran stated that he had a history of dizziness, fatigue and dyspnea. There were no diabetic abnormalities regarding the Veteran's skin. The Veteran denied ketoacidosis. However, he was on a restricted diet. The Veteran stated that he experienced intermittent blurred vision, erectile dysfunction and diabetic neuropathy. The examiner noted that the Veteran's right and left extremities and sensory exams were normal. The potential complications caused by the diabetes include visual impairment and cardiovascular and kidney disease. The examiner confirmed the diabetes type II diagnosis and erectile dysfunction. In June 2012, the Veteran was afforded another VA examination to determine the severity of his diabetes. The examiner reviewed the Veteran's VAMC medical records. The examiner noted that the Veteran was prescribed oral hypoglycemia agent and insulin. The Veteran did not require regulation of activities as part of medical management of diabetes mellitus. The examiner noted that the Veteran did not have any episodes of ketoacidosis or hypoglycemia requiring hospitalization over the past 12 months. The Veteran did not experience progressive unintentional weight loss or loss of strength attributable to diabetes. Additionally, the Veteran did not experience diabetic peripheral neuropathy, nephropathy or renal dysfunction caused by diabetic or diabetic retinopathy. The examiner further noted that the Veteran did not have any conditions that were due to or permanently aggravated by his diabetes. In April 2015, the Veteran was seen at the West Palm Beach VAMC: Emergency Department Psychiatry Note. See Capri entered in VBMS in April 2016. The ER note stated that the police found the Veteran in a parking lot in a diaphoteric state. When the Veteran arrived at the ER, he was belligerent and uncooperative with staff instructions. Id. at 273. The examiner noted that the Veteran took large doses of insulin and reported eating once a day. The psychiatric examiner noted that regarding the Veteran's cognitive and emotional functioning, the Veteran "Does understand the information provided about his health status and treatment options." The Veteran explained that he is a diabetic and takes insulin for his blood sugar. That morning, the Veteran had not eaten and his blood sugar dropped. He was calm and cooperative at the time of the interview. The Veteran appeared to understand the need to be compliant with his medications as prescribed and his treatment plan. He was able to appreciate how this information applied to his situation, including the potential consequences of alternative treatment decisions. He was able to manipulate the information to draw a logical conclusion, and was able to communicate his decision. Based on the examiner's evaluation of the Veteran's decision making capacity, the Veteran clearly did have the ability to provide informed consent. See id. In June 2015, the Veteran was seen at the West Palm Beach VAMC: Education Discharge Note. See Capri entered in VBMS in April 2016. The Veteran went to the emergency room for hypoglycemia. See id. at 240, 245. The Veteran was instructed on eating after taking his insulin and hypoglycemia medications. See id. at 233. He was discharged in stable condition. Id. at 245. In September 2015, the Veteran had a follow-up appointment at West Palm Beach VAMC: Primary Care Note. The Veteran had a follow-up for two episodes of hypoglycemia. See id. at 176. The Veteran was confused and was taken to the hospital. The Veteran stated that he had not been eating well. See id. at 182. He stopped taking his insulin 3 three to four weeks prior. The Veteran stated that he did not experience dizziness, numbness or weakness. However, he did experienced chills, diaphoresis, and nauseas. See id. at 177. From October 2011 to April 2016, in the Veteran's VA treatment records, the examiners noted the Veteran experienced erectile dysfunction. See id. at 1, 885. In November 2013, the Board remanded the case in order to evaluate the current severity of the Veteran's diabetes mellitus with associated erectile dysfunction. In April 2016, the Veteran was afforded a VA examination to determine the severity of his diabetes and erectile dysfunction. The examiner reviewed the claims file and performed an in-person examination. The examiner noted that the Veteran was taking an oral hypoglycemic agent and insulin. The Veteran did not require regulation of activities as part of medical management of diabetes mellitus. The Veteran visited his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month. He had not been hospitalized for episodes of ketoacidosis or hypoglycemic reactions within the past 12 months. However, the examiner noted that the Veteran experienced two episodes of hypoglycemic reactions which did not require hospitalizations because the Veteran condition improved. The Veteran did not have progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. The examiner noted that the Veteran was diagnosed with diabetic nephropathy or renal dysfunction. However, the diabetes did not permanently aggravate any other conditions. The examiner confirmed the diabetes mellitus type II diabetes. Regarding the Veteran's erectile dysfunction, the examiner noted that the condition did not required continuous medication. The Veteran had not had an orchiectomy or renal dysfunction due to his condition. He was not able to achieve an erection sufficient for penetration and ejaculation without medication, and he did not experience retrograde ejaculation. Additionally, the Veteran did not have a history of chronic epidymitis, epididymo-orchitis, prostitatis, or benign or malignant neoplasm or metastases related to his diabetes. During the Veteran's April 2016 diabetes mellitus VA examination, the Veteran did not report penile deformity with loss of erectile power. The examiner confirmed the Veteran's erectile dysfunction. When asked if it is it as likely as not (at least a 50% probability) attributable to the Veteran's diabetes, the examiner checked "no." The examiner stated that multiple medical conditions such as obesity, hyperlipidemia, smoking, hypertension, medication for hypertension such as norvasc, and medication for acid reflux like zantax, omeprazole, hypogonadism could cause erectile dysfunction. Additionally, the examiner noted that the Veteran was diagnosed with diabetes in April 2003 and erectile dysfunction in September 2003. The examiner further noted that according to peer reviewed medical literature that would be too early for presentation of erectile dysfuction due to diabetes. Upon careful review of the evidence, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's diabetes disability at any time during the course of the instant appeal. Specifically, although the record establishes that the Veteran's diabetes mellitus has required an oral hypoglycemic agent, insulin, and restricted diet throughout the period on appeal, there is no evidence in the record demonstrating regulation of activities so as to warrant a 40 percent rating or higher. As set forth above, to satisfy the criteria for a 40 percent disability rating for diabetes mellitus, there must be evidence demonstrating that the disorder requires insulin, a restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. In light of the conjunctive "and" in the criteria for a 40 percent disability rating under Diagnostic Code 7913, all criteria must be met to establish entitlement to a 40 percent rating. See Camacho, 21 Vet. App. at 366. Moreover, establishing "regulation of activities" requires competent medical evidence showing that avoidance of strenuous occupational and recreational activities is necessary to control the claimant's diabetes. See 38 C.F.R. § 4.119, Diagnostic Code 7913; Camacho, 21 Vet. App. at 363-64. Here, the June 2012 and April 2016 VA examiners specifically indicated that the Veteran's diabetes mellitus did not require regulation of activities as part of the medical management of his diabetes mellitus. Additionally, the competent medical evidence of record does not otherwise provide any indication that the Veteran has been restricted from performing strenuous occupational and recreational activities to control his diabetes. Instead, the record reflects that throughout the course of the appeal, the examiners' have encouraged the Veteran to exercise. In October 2007, the VA examiner noted that a part of the Veteran's treatment plan for diabetes mellitus included exercise and weight loss. VA treatment records continue to reflect that medical providers encouraged that the Veteran to exercise as tolerated. When applying the rating criteria, the evidence of record does not support a rating higher than 20 percent for the Veteran's diabetes disability, as the weight of the evidence is against a finding that the Veteran's diabetes mellitus has required regulation of activities at any time during the pendency of the appeal. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent for diabetes mellitus at any time during the course of the appeal. The Board notes that the Veteran's erectile dysfunction has been recognized by VA as part of his service-connected diabetes. In this regard, the Board notes that the Veteran's erectile dysfunction, is not manifested by deformity. As such, the erectile dysfunction was included as part of the service-connected diabetes per Note (1) to DC 7913 and a separate rating is not warranted at this time. The Board also notes that a separate award of special monthly compensation for loss of use of a creative organ was granted based on the erectile dysfunction. In summary, the Board finds that based on the medical evidence as provided, a rating higher than 20 percent for diabetes mellitus type II is not warranted. 38 C.F.R. § 4.119, Code 7913. Therefore, the benefit of the doubt rule does not apply, and the claim for an increased evaluation for the Veteran's diabetes mellitus is denied. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for COPD is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction is denied. REMAND In his February 2016 Substantive Appeal, the Veteran filed a separate appeal for his heart condition and requested a Board hearing. That request is pending scheduling. The Board notes that the claim for a TDIU is "inextricably intertwined," with the heart issue so must be remanded. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). In other words, a decision on this TDIU claim must be temporarily deferred pending completion of the Veteran's testimony on the claimed heart disability. Accordingly, the case is REMANDED for the following action: Defer action on the TDIU claim pending completion of the Veteran's hearing on his other appeal, or upon withdrawal of that hearing request. Once that is completed, the claim may be returned to the Board if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs