Citation Nr: 1800300	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO. 15-46 454	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus.

2. Entitlement to service connection for a cardiac condition, to include secondary to a service-connected disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

M. G. Perkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1960 to July 1980.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

In October 2017, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

The issue of service connection for a cardiac condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

There has been no demonstration by competent medical evidence, or by competent and credible lay evidence, that the Veteran's diabetes mellitus, type II, requires insulin, restricted diet, and regulation of activities.

CONCLUSION OF LAW

The criteria for an evaluation in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability evaluations are determined by comparing a Veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3.

While the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever 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).

The Veteran's diabetes mellitus is currently rated as 20 percent disabling under Diagnostic 38 C.F.R. § 4.119, Diagnostic Code 7913.The Veteran contends that he is entitled to a higher rating.

Under Diagnostic Code 7913, a 100 percent evaluation is warranted for diabetes mellitus requiring 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. A 60 percent evaluation applies if diabetes mellitus requires insulin, a 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 evaluated. A 40 percent evaluation is contemplated for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 20 percent disability evaluation is assigned for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. 

Notes in the rating criteria clarify that "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." Id.

In addition, note (1) provides that compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Non-compensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id.

Based on a thorough review of the evidence, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for diabetes mellitus, type II.

The rating criteria for diabetes are successive; the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. The lack of a need for regulation of activity is determinative as to any claim for evaluation in excess of the current 20 percent rating. Camacho v. Nicholson, 21 Vet. App. 360 (2007). 

Here, the criteria for a disability rating in excess of 20 percent for diabetes mellitus, type II are not met. The record before the Board includes VA medical records and examinations. These records do not reflect that the Veteran's diabetes mellitus requires regulation of his activities. A June 2011 VA examination report specifically notes that the Veteran does not require regulation of activities as part of the medical management of his diabetes. This same conclusion was reached by a VA examiner in a May 2014 VA examination. 

The June 2011 examiner reported that the Veteran visited a diabetic care provider once every three months for routine follow up care. The Veteran was not hospitalized for any incidents of ketoacidosis or hypoglycemia in the preceding twelve months. The Veteran's weight was reported as stable since his previous examination and he was not prescribed to restrict his activity to control his sugars.

The May 2014 examination report indicates that the Veteran visits a diabetic care provider less than two times a month for episodes of ketoacidosis and hypoglycemia and that hospitalization was not required for these episodes at any time in the twelve months preceding the examination. The May 2014 examination also indicated that the Veteran has not had progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. The examiner also found that the Veteran did not experience any functional impact due to his diabetic mellitus disability.

The Veteran testified at a Board hearing in October 2017. During the hearing the Veteran stated that a medical provider has never told him to restrict his activities, but he does so himself, so his activities do not affect his blood sugars. The Veteran also stated that he is able to control his blood sugars to avoid hypoglycemic reactions or any diabetic related condition that would require hospitalization.

Consideration has been given to whether a separate compensable evaluation is warranted for any associated disorders of diabetes mellitus, type II. The Veteran has been separately granted service connection for diabetic peripheral neuropathy of the bilateral lower extremities and he receives special monthly compensation for loss of use of a creative organ. 

The Board acknowledges the Veterans statements, that his diabetes should receive a higher disability rating because his diabetes treatment has progressed from pills to insulin injections three times a day. The Veteran has reported that his diabetes condition has taken a toll on his life. However, the Veteran is already compensated for having to take insulin injections. Diagnostic Code 7913 is also very specific that to attain a higher rating of 40 percent, the Veteran's activities must be regulated by a medical professional due to his diabetes. 

In deciding the claim, the Board has also considered the Veteran's lay statements that his diabetes disability is worse than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology.  

In sum, the Board has considered the clinical evidence and the lay statements with regard to the Veteran's symptoms, and finds that a rating in excess of 20 percent for the Veteran's service-connected diabetes mellitus disability is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is inapplicable and the claim must be denied. See 38 U.S.C. § 5107(b).


ORDER

Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is denied.

REMAND

Further development is required prior to adjudicating the claim of service connection for a cardiac condition. The Veteran contends that he is entitled to service connection for a cardiac condition, to include as due to his service-connected disabilities. Service connection has been granted for hypertension; however, it appears the Veteran is contending that he has a separate cardiac condition. At the hearing, he testified that he suffered a stroke in November 2012, after which he was told he had an enlarged heart.

The Veteran testified that he receives treatment at VA facilities and at Keesler Air Force Base (AFB). The most recent treatment records from Keesler AFB are dated in May 2014 and the Veteran testified that he has been treated there since that time. On remand, any subsequent treatment records should be obtained.   

Throughout the Veteran's medical treatment records, the Veteran's electrocardiograms (EKG) have shown left ventricular hypertrophy. Additionally, the Veteran's medical records reflect that during and after service the Veteran has experienced angina symptoms, to include substernal chest pain after exertion. Furthermore the Veteran's June 2012 stress test revealed that the Veteran was positive for cardiac ischemia per the accompanying EKG and his echocardiogram report showed an enlarged left ventricle and also gave a provisional diagnosis of left ventricular diastolic dysfunction. The Veteran is also an insulin dependent diabetic with neuropathy which is clinically known to mask cardiac related chest pain. On remand the Veteran should be scheduled for a VA examination to assess whether he has a diagnosed heart condition for VA compensation purposes.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Obtain the names and addresses of all medical care providers who treated the Veteran for cardiac complaints since May 2014.  After securing the necessary release, take all appropriate action to obtain these records, including any records from VA providers and Keesler AFB.

2. After completion of the foregoing, contact an appropriate examiner to obtain an opinion as to the current nature and likely etiology of any cardiac disability, other than hypertension. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an examination.  

After reviewing the record, the examiner should answer the following:

(a) Identify all currently diagnosed cardiac conditions, other than hypertension.

(b) Is it at least as likely as not (a 50 percent or greater probability) that any currently diagnosed cardiac condition had its onset in or is otherwise related to the Veteran's active duty service?

The examiner should discuss as necessary the Veteran's chest pain upon exertion during and after service, and also any significance the Veteran's service-connected diabetes would have on any angina symptoms.

(c) If the answer to (b) is no, is it at least as likely as not (50 percent or greater probability) any currently diagnosed cardiac condition is caused or aggravated by any of the Veteran's service-connected disabilities (diabetes mellitus, hypertension, bilateral lower extremity varicose veins and bilateral lower extremity peripheral neuropathy)?  

The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. 

The examiner should discuss as necessary the significance of the Veteran's service-connected hypertension, and left ventricular hypertrophy and indications of having cardiac ischemia per the EKG during the Veteran's stress test.

Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

3. Thereafter, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide the Veteran and her representative with a supplemental statement of the case and an opportunity to respond. Then return the case to the Board for further appellate review, if otherwise 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.A. §§ 5109B, 7112 (West 2014).




______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs