Citation Nr: 1752852 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-25 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a disability evaluation higher than 20 percent for service-connected diabetes mellitus type II to include erectile dysfunction and diabetic retinopathy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1969 to September 1972, with service in Vietnam. The Veteran is in receipt of a Purple Herat and Combat Infantryman's Badge, among other awards. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The jurisdiction now resides with the RO in Indianapolis, Indiana. In his May 2010 substantive appeal, the Veteran requested a hearing before a member of the Board. In July 2017, he was scheduled for a hearing before the Board but failed to appear. No good cause for his failure to appear at the hearing has been provided. VA therefore has no duty to provide an opportunity for a hearing in this case. See 38 C.F.R. § 20.704(e) (2017). FINDING OF FACT The most probative evidence of record demonstrates that the Veteran's type II diabetes mellitus was manifested by requiring insulin and a restricted diet, but not restriction of activities. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for service-connected type II diabetes mellitus, including erectile dysfunction and diabetic retinopathy, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.103, 3.105, 3.159, 3.321, 3.340, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.15, 4.16, 4.25, 4.79, Diagnostic Code (DC) 6006-6066, 4.119, DC 7913, 4.115b, DC 7522 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017). The duty to notify has been met. See November 2008 VCAA correspondence. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has associated the Veteran's service treatment records and VA treatment records with the claims file. The Veteran was also afforded adequate examinations. The examiners considered the relevant history, provided a detailed description of the condition, and provided analysis to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Additionally, the Veteran elected not to attend scheduled diabetes and ophthalmology examinations in connection with his increased rating claim for diabetic retinopathy. In an October 2016 Report of General Information, RO personnel informed the Veteran that the examinations would be helpful to his claim, noting that VA treatment records are not conducted with evaluating the disability for compensation purposes in mind. The Veteran reiterated his belief that an examination was not necessary and that the current records supported his claim. According, VA's duty to obtain examinations has been met. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria, Facts, and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability 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 (2017). 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 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Veteran contends that he should be granted an increased rating because he has a restricted diet, his activities have been restricted and he has been prescribed insulin and medication due to his service-connected diabetes mellitus. The Veteran's diabetes is rated as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913, which contemplates diabetes that requires insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet. A 40 percent rating is warranted when diabetes requires insulin, restricted diet, and regulation of activities. Regulation of activities is defined by DC 7913 as the avoidance of strenuous occupational and recreational activities. Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet.App. 360 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996)). Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process. VA treatment records dated February 2008 to August 2008 shows the Veteran was treating his uncontrolled diabetes mellitus with insulin and nutrition. Hyperglycemia secondary to the diabetes mellitus was noted. VA records from September 2008 to November 2008 continue to show an effort to control the Veteran's diabetes mellitus with insulin and diet, including controlling sugars. An April 2009 VA treatment record showed the Veteran had severe hypoglycemia caused by a high sugar level when he took his insulin shot and also had not eaten. A May 2009 prescription note signed with an illegible VA physician signature indicated the Veteran had restricted activities and diet and taking insulin. A March 2010 VA examination diagnosed diabetes mellitus, type 2. The Veteran was treated with both insulin and oral medication. He had no history of diabetes related hospitalizations and no episodes of hypoglycemia reactions or ketoacidosis. The examiner determined that although the Veteran was instructed to follow a restricted diet, he was not restricted in ability to perform strenuous activities. The examiner found there were no effects on the Veteran's usual daily activities. Erectile dysfunction was noted on examination and found to be most likely related to the diabetes. There was no treatment prescribed for the erectile dysfunction. The examiner found insufficient evidence to diagnose peripheral neuropathy. A June 2012 VA examination diagnosed diabetes mellitus, type 2. The examiner indicated the Veteran's treatment of the diabetes mellitus included being managed by restricted diet and prescribed insulin more than 1 injection per day. The examiner found that there was no regulation of activities. Moreover, the Veteran had to visit his diabetic care provider less than 2 times per month for episodes of ketoacidosis or hypoglycemic reactions. Additionally, he had no episodes of ketoacidosis, hypoglycemic or hypoglycemia requiring hospitalization. No loss of weight was found as attributable to diabetes mellitus but a progressive loss of strength was noted. Additionally, no complications, including diabetic retinopathy or erectile dysfunction were found on examination. VA treatment notations show a continuous use of medication in an effort to control the Veteran's diabetes mellitus. A June 2014 VA treatment record reported the Veteran had uncontrolled diabetes mellitus treated with Lantus and insulin. A January 2016 VA treatment record reported the Veteran's diabetes mellitus was uncontrolled, indicating he had not titrated insulin as advised repeatedly. Another record indicated the Veteran agreed to work with a dietician. Treatment notes from February 2016 show the Veteran had attended a nutrition clinic consultation with control his blood sugar. An October 2016 VA opinion report was obtained, as noted above, because the Veteran failed to report for an examination. Upon a thorough review of the record, the diagnosis was diabetes mellitus, type 2. The examiner determined that the diabetes mellitus was managed by restricted diet and required insulin daily, but did not require regulation of activities as a part of his medical management. Additionally, the Veteran required visits to his diabetes care provider less than 2 times per month for episodes of ketoacidosis as well as episodes of hypoglycemia. Additionally, the Veteran had not been hospitalized for either ketoacidoses or hypoglycemia in the past 12 months and experienced no weight loss attributable to diabetes mellitus. The Board finds that the evidence of record does not support an evaluation in excess of 20 percent. Although the May 2009 VA prescription note reported the Veteran had restriction in his activities, the remainder of the evidence of record contradicts that finding. In the March 2010, June 2012 and October 2016 VA examinations, the VA examiners reviewed the Veteran's medical history and noted that the Veteran has consistently been on a diet and medication (either insulin or another drug) to control his diabetes and that restriction of activities was not warranted or noted. The Board finds the preponderance of the evidence weighs against a finding that the treatment for diabetes mellitus requires regulation of activities. If such treatment was directed, it would be reflected in the medical records more than on the single occasion in 2009 with no such notation thereafter. As a rating in excess of 20 percent requires regulation of activities, an increased rating is not warranted at any time during the appeal period. The Board also finds that separate ratings for erectile dysfunction and retinopathy are not warranted. A noncompensable rating is assigned to a disability when the criteria for a compensable rating are not met. 38 C.F.R. § 4.31. In the March 2010 VA examination, the examiner stated that the Veteran's erectile dysfunction was as likely as not due to his diabetes. The RO found the disability to be noncompensable but associated it with the Veteran's service-connected diabetes. There is no DC for erectile dysfunction. An analogous DC therefore must be utilized to determine if it is compensable. 38 C.F.R.§ 4.20. 38 C.F.R. § 4.115b addresses disabilities of the genitourinary system. DC 7522 thereunder, which is for penis deformity with loss of erectile power, is most analogous to erectile dysfunction, and calls for a 20 percent rating. While the Veteran's loss of erectile power is undisputed, the March 2010 VA examination does not reference any penis deformity. In fact, subsequent VA examinations do not note loss of erectile power associated with diabetes mellitus. Therefore, the Veteran's erectile dysfunction is noncompensable and is part of the diabetic process. In the October 2016 VA examination, the VA examiner diagnosed diabetic retinopathy. The RO found the disability to be noncompensable but associated it with the Veteran's service-connected diabetes. Diabetic retinopathy is rated under 38 C.F.R. § 4.84a, DC 6006-6066, 6080. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. In this case, the hyphenated diagnostic code indicates that retinopathy, under DC 6006, is the service-connected disability. Impairment of visual acuity, under DC 6066, as well as impairment of visual fields, under DC 6080, are residual conditions. Under DC 6006, a 10 percent rating is warranted if there is either visual impairment due to the particular condition or on incapacitating have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months. Under DC 6066, a 10 percent rating is warranted if vision acuity in one eye is 20/50 and vision in the other eye is 20/50 or 20/40. Under DC 6080, a 10 percent rating is warranted if there is unilateral loss of the temporal half, unilateral loss of the nasal half, unilateral loss of the inferior half, or the unilateral or bilateral loss of the superior half of the visual field; a bilateral 20/40 visual acuity is noncompensable and is part of the diabetic process. June 2014, June 2015 and September 2016 VA treatment notations assessed the Veteran with mild then later, moderate nonproliferative diabetic retinopathy in the right eye and mild nonproliferative diabetic retinopathy in the left eye. The Veteran was referred for a re-evaluation by an ophthalmologist. The Board notes the Veteran was scheduled for a VA ophthalmology examination to evaluate his diabetic retinopathy but as noted above, the Veteran indicated he would not attend the examination. Instead, he reported he felt everything needed to evaluate his appeal should be of record in his claims file and treatment notes. There is no evidence of record to indicate the Veteran had any incapacitating episodes attributable to any eye condition during the previous 12 months. Additionally, while the Veteran was repeatedly referred for a comprehensive eye examination, the record does not include a completed examination. Therefore, there is no evidence of record to warrant a compensable rating for diabetic retinopathy. As such, it is rated as part of the diabetic process. Based on the above, the Board finds that an increased rating is not warranted at any time for type II diabetes mellitus, including erectile dysfunction and retinopathy. Neither the Veteran nor his/her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to a disability rating in excess of 20 percent for service-connected type II diabetes mellitus, including erectile dysfunction and retinopathy, is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs