Citation Nr: 1753582 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 13-33 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II (diabetes) with erectile dysfunction (ED) and hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In his November 2013 substantive appeal, the Veteran requested a hearing before the Board. In May 2016, he notified VA that he wanted to withdraw the request. His hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.704(e) (2017). In June 2017, the Veteran submitted an executed VA Form 21-22 indicating a desire to change representation from Disabled American Veterans (DAV) to the Tennessee Department of Veterans Services. An appellant has 90 days following notification of certification of an appeal to the Board to request a change in representation. 38 C.F.R. § 20.1304(a) (2017). Thereafter, good cause must be shown for the delay in making the request. 38 C.F.R. § 20.1304(b)(1). In this case, an April 2016 letter to the Veteran notified him that the present matter had been certified and transferred to the Board. As such, the June 2017 request was not timely under 38 C.F.R. § 20.1304(a). Further, the Veteran has not explained (i.e., offered good cause) why he requested the change in representation. Accordingly, DAV remains the representative for the purpose of this decision. See Perez v. Shinseki, 25 Vet. App. 190, 194-95 (2012). VA treatment records dated in April 2015 indicate that the Veteran may have foot disability as the result of service-connected diabetes. The Board does not have jurisdiction over the issue because the RO has not adjudicated the issue. As such, the issue is referred to the Agency of Original Jurisdiction for appropriate action. 38 C.F.R. § 19.9(b). FINDING OF FACT The Veteran has not required regulation of his activities in order to manage his diabetes. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for service-connected diabetes have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 VA has a duty to notify and to assist the Veteran in the development of his claim. The duty to notify has been met. 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...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's medical records, to include service treatment records (STRs) and VA and private treatment records, have been obtained. Moreover, the Veteran underwent VA examinations during the appeal period, the reports of which are adequate to decide the claim on appeal. The Board finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced as a result of the Board's adjudication of the issue below. II. Increased Rating Claim The Veteran's diabetes has been rated as 20 percent disabling for the entirety of the appeal period (i.e., since May 25, 2004). On that date, he filed an original service connection claim for diabetes. The RO denied the claim in a September 2004 rating decision, against which the Veteran filed a notice of disagreement. In response, the RO issued a Statement of the Case in November 2005. The Veteran did not file a substantive appeal, however. As such, the September 2004 rating decision became final. 38 C.F.R. §§ 20.302, 20.1103. In September 2011, the Veteran filed a claim to reopen service connection for diabetes. In a February 2012 rating decision, the RO reviewed its September 2004 rating decision, found its denial of service connection for diabetes clear and unmistakable error (CUE), and granted diabetes as 20 percent disabling since the original claim on May 25, 2004. Nevertheless, the Veteran has appealed the decision, arguing that a higher rating should be assigned. In the decision below, therefore, the Board will consider whether a disability rating in excess of 20 percent has been warranted at any time from May 25, 2004. See 38 C.F.R. §§ 3.105, 3.400(k). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Diabetes mellitus is rated under DC 7913 of 38 C.F.R. § 4.119. This provision authorizes compensable ratings of 10, 20, 40, 60, and 100 percent. As the Veteran's diabetes has been rated as 20 percent disabling throughout the appeal period, the Board will address whether a 40 percent rating or higher is warranted. Under DC 7913, a 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities based on clinical findings by a medical professional). A 60 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice per month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes 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 evaluated. The evidence of record dated since May 2004 consists of lay assertions from the Veteran, VA and private treatment records, and VA compensation examination reports dated in July 2011, March 2012, and May 2015. This evidence indicates that the Veteran uses insulin for his diabetes, and is directed to follow a restricted diet. The evidence has not indicated "regulation of his activities," however. The March 2012 and May 2015 VA reports indicate that a medical professional has not found it necessary that the Veteran avoid "strenuous occupational and recreational activities based on clinical findings[.]" Further, neither the VA treatment records nor the private treatment records dated since 2004 indicates that a medical professional has recommended that the Veteran regulate his activities because of his diabetes. Rather, the treatment records have consistently indicated that medical professionals have recommended that the Veteran should exercise to reduce his body weight. Thus, the Board finds unwarranted the assignment of an initial rating higher than 20 percent under DC 7913. See 38 C.F.R. § 4.119. In assessing the claim, the Board has considered the Veteran's lay assertions. He is competent to report observable symptoms such as those associated with a diabetic reaction (e.g., low energy). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the nature and extent of his disability is beyond his capacity to observe or sense. Diabetes is an internal pathology involving the endocrine system. The question regarding whether he requires regulation of his activities due to diabetes is a medical matter beyond his capacity to observe. See Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007) (medical evidence is required to support the criterion of a 40 percent disability rating regarding regulation of activities.) This particular medical issue must be determined by medical insight, analysis, and documentation. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Indeed, the medical evidence is more credible on this question and, as noted, repeatedly indicates that the Veteran's diabetes does not require regulation of his activities. As such, the preponderance of the evidence is against assigning a higher disability rating here. Diabetic Complications The Veteran is separately rated for several diabetic complications. See 38 C.F.R. § 4.119, DC 7913, Note (1). Compensable evaluations have been assigned for peripheral neuropathy, gastroparesis, and retinopathy, while hypertension and ED have been found noncompensable. The Veteran asserts entitlement to separate compensable ratings for hypertension and ED. Under DC 7913, only compensable complications of diabetes are to be rated separately (unless they are part of the criteria used to support a 100 percent rating). Noncompensable complications are to be rated under DC 7913 as part of the diabetic process. 38 C.F.R. § 4.119, DC 7913, Note (1). In this case, the evidence supports the RO's determination that hypertension and ED complications are noncompensable and therefore ratable with diabetes under DC 7913. For VA rating purposes, "hypertension" means that diastolic blood pressure is predominately 90 mm. or greater; "isolated systolic hypertension" means that the systolic blood pressure is predominately 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. The lowest compensable rating of 10 percent is warranted when diastolic pressure is predominantly 100 or more, or when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, or when systolic pressure is predominantly 160 or more. The Board has reviewed private treatment records dated since the 1980s, and has reviewed VA treatment records dated since July 2004 (when the Veteran began medical treatment with VA). This evidence indicates that the Veteran has been diagnosed with hypertension since May 2004, and has been prescribed medication for hypertension since then. However, none of the evidence indicates that diastolic pressure has been predominantly 100 or more, systolic pressure has been predominantly 160 or more, or that continuous medication has been necessary to control hypertension with a history of diastolic blood pressure predominantly 100 or more. Of the dozens of blood pressure readings noted between 2000 and 2015, only several indicate either diastolic pressure of 100 or more or systolic pressure of 160 or more (see e.g., blood pressure readings in May 2015, November 2014, December 2013, August 2013, July 2013, January 2013). In fact, the May 2015 VA compensation examiner noted an average blood pressure reading of 133/73 on the day of examination. Further, the Board has reviewed the medical evidence dated prior to the appeal period, to determine whether medication was necessary to lower diastolic pressure below 100. However, private medical evidence dated from the 1980s to 2004 does not indicate predominant diastolic readings of 100 or more. In sum, diastolic readings have been predominantly under 100 while systolic readings have been predominantly under 160. As such, the Veteran's hypertension has been properly considered as noncompensable during the appeal period, and as ratable under DC 7913 with diabetes. The Veteran's ED has been rated as a noncompensable complication of diabetes as well. Compensable penis disability is rated under DC 7522. This DC authorizes a sole 20 percent rating for deformity of the penis with loss of erectile power. See 38 C.F.R. § 4.115b. The Veteran's ED has not been rated as compensable because no evidence of record indicates the loss of erectile power accompanied by deformity of the penis. The medical evidence addressing the Veteran's ED, found in VA reports and VA and private treatment records dated since 2001, indicates the use of medication to help with ED, but does not indicate any deformity. In fact, the May 2015 VA examiner found the Veteran's penis to be normal. Based on this evidence, a compensable evaluation under DC 7522 has not been warranted. As the preponderance of the evidence is against the claim for a higher initial rating for diabetes, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. ORDER The claim for a higher initial rating for diabetes with hypertension and ED is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs