Citation Nr: 1801769 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 17-03 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent prior to December 13, 2016, and an increased disability rating in excess of 40 percent from December 13, 2016 for diabetes mellitus. 2. Entitlement to a separate disability rating for a sensory, neurological, and/or vascular disability of the bilateral upper extremity, secondary to diabetes mellitus. 3. Entitlement to a separate disability rating for a sensory, neurological, and/or vascular disability of the bilateral lower extremity disability, secondary to diabetes mellitus. ATTORNEY FOR THE BOARD Grace J. Suh, Associate Counsel INTRODUCTION The Veteran served with the United States Army from October 1958 to July 1988, which included service in the Republic of Vietnam, during the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 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 issues of entitlement to a separate disability rating for a sensory, neurological, and/or vascular disability of the bilateral upper extremity, secondary to diabetes mellitus; and entitlement to a separate disability rating for a sensory, neurological, and/or vascular disability of the bilateral lower extremity disability, secondary to diabetes mellitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to December 13, 2016, the Veteran's diabetes mellitus was managed by oral hypoglycemic agents, insulin injections, and dietary restrictions, without regulation of activities. 2. From December 13, 2016, the Veteran's diabetes mellitus was managed by oral hypoglycemic agents, insulin injections, dietary restrictions, as well as regulation of activities. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 20 percent prior to December 13, 2016, and for an increased disability rating in excess of 40 percent from December 13, 2016 for diabetes mellitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.27, 4.119, Diagnostic Code (DC) 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to an initial disability rating in excess of 20 percent prior to December 13, 2016, as well as an increased disability rating in excess of 40 percent thereafter for his diabetes mellitus. See June 2015 Notice of Disagreement. Preliminarily, the Board notes the applicable DC for diabetes mellitus is DC 7913. 38 C.F.R. § 4.119. Under DC 7913, a 20 percent disability rating is warranted if it requires insulin and restricted diet, or an oral hypoglycemic agent and restricted diet; a 40 percent disability rating is warranted if it requires insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities); and a 60 percent disability rating is warranted if it requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or visits twice monthly to a diabetic care provider, as well as complications that would be non-compensable if separately evaluated. As this appeal involves the issue of an increase in the initial disability rating assigned, the evidence to be considered includes the entire appeal period. See Fenderson v. West, 12 Vet. App. 119 (1999). Generally, in assessing the evidence below, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms of his diabetes mellitus. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that while a lay person is not competent to opine as to medical etiology or render medical opinions, they are competent to establish the presence of observable symptomatology), abrogated on other grounds by Walker v. Shinseki, 708 F.3d 1331 (2013). To that extent, the Board finds his lay statements are competent and credible. However, the Veteran is not competent to render a medical diagnosis or opinion on complex medical question such as complications resulting from diabetes mellitus, ketoacidosis, hypoglycemic reactions, etc. See Barr, supra; Jones v. West, 12 Vet. App. 460, 465 (1999) (holding that only those with specialized medical knowledge, training, or experience are competent to render a medical diagnosis). In that regard, the Board relies on the medical evidence of record. In furtherance of this claim, the Veteran has been afforded two VA examinations. He was first examined in May 2015. May 2015 Diabetes Mellitus VA Examination Report. Upon examination, the VA examiner confirmed his diagnosis of diabetes mellitus and noted in the Medical History section that his treatment solely consisted of oral hypoglycemic agents. However, the VA examiner listed four different medications in the Remarks section, one of which was Lantus, an insulin injection. Id.; see also Adjusting Your Basal (Lantus) Insulin Printout; April 30, 2015 K.M.C. Medical Record. Thus, the May 2015 Diabetes Mellitus VA Examination Report is internally inconsistent and the Board declines to accord it any probative weight. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also January 2017 Letter from the Veteran (alleging the May 2015 VA examination was inadequate). The Veteran underwent his second VA examination in November 2016. November 2016 Diabetes Mellitus VA Examination Report. At that time, the VA examiner determined his treatment consisted of a restricted diet, oral hypoglycemic agents, and more than one insulin injection per day. However, he did not require regulations of activities. Further, he required less than two visits per month to his diabetic care provider for episodes of ketoacidosis or hypoglycemia, and did not have any hospitalizations due to either of these conditions in the past 12 months. Even though the VA examiner noted the Veteran had diminished sensations in his lower extremities, the VA examiner did not associate these symptoms with his diabetes mellitus. In the end, the VA examiner concluded there were no other pertinent findings, complications, conditions, signs, or symptoms attributable to his diabetes mellitus. In addition to these VA examinations, the claims file contains treatment records from K.M.C. An April 28, 2015 K.M.C. Medical Record shows the Veteran presented for a diabetes management appointment, at which time, the treatment provider noted his medication regimen consisted of three different prescriptions, none of which were insulin. The treatment provider specifically documented that he had not been started on insulin due to an impending surgery. Shortly after this appointment, an April 30, 2015 K.M.C. Medical Record revealed the Veteran was started on Lantus, an insulin injection. An accompanying April 30, 2015 Diabetes Care: The ABCs to Better Health establishes that he was educated on dietary meal planning and placed on dietary restrictions. However, no regulation of activities was indicated. Rather, it was recommended that he exercise 30 minutes per day, five days per week, and to increase exercising as tolerated. Thereafter, a December 15, 2015 K.M.C. Medical Record discloses, the Veteran underwent a consult with the K.M.C. Endocrinology Clinic for his diabetes mellitus. At that time, the endocrinologist noted his medication regimen consisted of four different prescriptions, one of which was insulin. December 15, 2015 K.M.C. Medical Record. According to the endocrinologist, a review of his fasting serum glucose readings showed no hypoglycemic episodes. His diabetes mellitus symptoms at that time were noted to be recent weight loss after starting on a new medication, and sensory disturbances manifested by numbness of the right and left hands as well as of the right and left feet. In the end, the endocrinologist indicated an assessment of diabetes mellitus with diabetic neuropathy; recommended further weight loss; and encouraged continued physical activity as tolerated. Subsequent K.M.C. treatment records reiterated largely similar findings until December 13, 2016. In a December 13, 2016 K.M.C. Chronological Record of Medical Care, the endocrinologist referenced for the first time exercise restrictions in order to avoid hypoglycemia and hyperglycemia in conjunction with dietary restrictions. Further, the endocrinologist confirmed he continued to be prescribed insulin, and did not have any episodes of hypoglycemia. It appears the Veteran's use of insulin, dietary restrictions, and regulation of activities has continued since December 13, 2016. See January 5, 2017 K.M.C. Chronological Record of Medical Care. In fact, a second insulin injection, NovoLog, was added to his medication regimen in January 2017. Id.; see also January 2017 Letter from the Veteran. Even so, the endocrinologist verified that he did not have any hypoglycemic episodes according to his fasting serum glucose readings. At no time during the appeal period, did the Veteran's K.M.C. treatment records mention episodes or hospitalizations due to ketoacidosis. With the exception of the findings pertaining to diabetic neuropathy, which will be addressed further below, the Board notes the November 2016 Diabetes Mellitus VA Examination Report and the Veteran's K.M.C. treatment records are consistent with each other. In contemplating these medical records, the Board finds the preponderance of the evidence does not support an initial disability rating in excess of 20 percent prior to December 13, 2016 for his diabetes mellitus as there is no evidence of record establishing regulation of activities before that date. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). From December 13, 2016, the Board finds the preponderance of the evidence does not substantiate an increased disability rating in excess of 40 percent for the Veteran's diabetes mellitus because there is no evidence of record demonstrating any episodes of ketoacidosis or hypoglycemia, much less episodes requiring one or two hospitalizations per year or requiring visits to a diabetic care provider at least twice per month. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Fagan, supra. Moreover, the Veteran has not alleged otherwise. See June 2015 Notice of Disagreement; January 2017 VA Form 9. While the Board acknowledges the Veteran's appeal is based, in part, on the number of daily insulin injections he requires, for evaluation purposes the number of daily insulin injections become relevant only when considering a 100 percent disability rating. See January 2017 VA Form 9; 38 C.F.R. § 4.119, DC 7913. In addition to more than one daily insulin injection, restricted diet, and regulation of activities, for a 100 percent disability rating, there must be episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, as well as either progressive loss of weight of strength or complications that would be compensable if separately evaluated. As noted above, there is no evidence of record demonstrating any episodes of ketoacidosis or hypoglycemia. Therefore, notwithstanding the remand directives below addressing a potential complication that may be separately compensable, the preponderance of the evidence does not warrant a 100 percent disability rating. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Fagan, supra. The Board's inquiry does not end here. Increased evaluations under other potentially applicable DCs must be considered as well. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Here, the only symptom not addressed by the diagnostic criteria delineated in DC 7913 is the numbness in the Veteran's upper and lower extremities bilaterally. For the reasons detailed in the remand portion of this decision, there is insufficient evidence to assign a separate disability rating for this manifestation at this time. ORDER An initial disability rating in excess of 20 percent prior to December 13, 2016, and an increased disability rating in excess of 40 percent from December 13, 2016 for diabetes mellitus are denied. REMAND Following a May 2015 diabetic sensory-motor peripheral neuropathy examination, the VA examiner found the Veteran had decreased light touch/monofilament testing in the right and left feet/toes. May 2015 Diabetic Sensory-Motor Peripheral Neuropathy VA Examination Report. Nonetheless, the VA examiner concluded it was not attributable to diabetic peripheral neuropathy. The VA examiner explained that most diabetes sequelae have their onset between five and 10 years after diagnosis. Therefore, the onset of these symptoms concurrently with his diabetes indicated it is less likely than not caused by the same. The November 2016 VA examiner reached a similar conclusion. November 2016 Diabetes Mellitus VA Examination Report. Despite finding evidence of diminished sensations in the Veteran's lower extremities, VA examiner did not associate these symptoms with his diabetes given his report that he began experiencing these symptoms several years prior to his diagnosis. The first reference to diabetic neuropathy among the Veteran's K.M.C. treatment records comes in December 2015. As noted above, at that time the endocrinologist documented a diagnosis of diabetes with diabetic neuropathy. See December 15, 2015 K.M.C. Medical Record; see also K.M.C. Diagnosis History. However, following a podiatry consultation that same day, the podiatrist noted a provisional diagnosis of diabetes with diabetic neuropathy, and referred him for further examination. December 15, 2015 K.M.C. Medical Record. Upon further examination, a January 5, 2016 K.C.N.L. Ankle-Brachial Index and Bilateral Lower Extremity Arterial Doppler Ultrasound Report concluded there was no significant lower extremity peripheral arterial disease. Notwithstanding this report, a January 21, 2016 K.M.C. Medical Record documented an assessment of peripheral vascular disease. In light of the inconsistency between the VA examinations and the K.M.C. treatment records, as well as the inconsistency among the K.M.C. treatment records themselves, the Board finds there is insufficient evidence of record for the Board to make a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994). As such, a remand is necessary to obtain a VA examination to determine whether the Veteran has a sensory, neurological, and/or vascular disability(ies) of the bilateral upper and/or lower extremity, secondary to his diabetes mellitus. 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. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of any sensory, neurological, and/or vascular disability of the bilateral upper and/or lower extremity, secondary to his service-connected diabetes mellitus. After reviewing the complete record, the examiner should: a. Determine whether he has any sensory, neurological, and/or vascular conditions of the upper and/or lower extremities. b. As to each sensory, neurological, and/or vascular condition identified, opine as to whether it is at least as likely as not (50 percent probability or greater) proximately due to or aggravated beyond its natural progression by his service-connected diabetes mellitus and explain why. c. In rendering an opinion, the examiner is asked to discuss his K.M.C. treatment records, to include the December 15, 2015 K.M.C. Medical Record, which documented a diagnosis of diabetes with diabetic neuropathy; and the January 21, 2016 K.M.C. Medical Record, which documented an assessment of peripheral vascular disease. 2. Once the above request has been completed, to the extent possible, readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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 (2012). ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs