Citation Nr: 1801960 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 11-20 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II, with hypertension. 2. Entitlement to an initial evaluation in excess of 50 percent for diabetic retinopathy with constricted fields of vision. 3. Entitlement to an evaluation in excess of 20 percent for diabetic retinopathy causing decreased visual acuity prior to August 28, 2014, and in excess of 40 percent thereafter. 4. Entitlement to an initial compensable evaluation for diabetic retinopathy with diplopia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to March 1969. These matters come before the Board of Veterans' Appeals on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Board previously remanded these matters in June 2014 and February 2017 for additional development. The Veteran testified before the undersigned Veterans Law Judge at a June 2012 Travel Board hearing. A transcript is of record. To the extent that the issue of entitlement to a TDIU is raised by the record, Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board notes that the issue is moot. The Veteran is currently in receipt of 100 percent evaluations for two separate service-connected disabilities and special monthly compensation under 38 U.S.C. § 1114 (s). See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). FINDINGS OF FACT 1. For the entire period, the Veteran's diabetes mellitus, type II did not require the regulation of activities. 2. For the entire period, the Veteran's diabetic retinopathy resulted in concentric contraction of the visual field no worse than 16 to 30 degrees bilaterally. 3. For the entire period, the Veteran's diabetic retinopathy resulted in decreased visual acuity of 20/200 in the left eye and 20/40 or better in the right eye. 4. To the extent that the Veteran has experienced diplopia during the period on appeal, diplopia has been occasional. CONCLUSIONS OF LAW 1. For the entire period, the criteria for a disability evaluation in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2017). 2. For the entire period, the criteria for a disability evaluation in excess of 50 percent for diabetic retinopathy with constricted fields of vision have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.79, Diagnostic Code 6080 (2017). 3. For the entire period, the criteria for a disability evaluation of 40 percent, but not higher, for diabetic retinopathy with decreased visual acuity have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.77, 4.79, Diagnostic Code 6080-6066 (2017). 4. For the entire period, the criteria for a compensable evaluation for diabetic retinopathy with diplopia have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.79, Diagnostic Code 6090 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Increased Evaluation Diabetes Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has not materially changed throughout the period on appeal and a uniform evaluation is warranted. The Veteran's diabetes mellitus, type II, has a current 20 percent evaluation under Diagnostic Code 7913, effective July 9, 2001. The Veteran filed an increased rating claim on May 27, 2010. Pursuant to Diagnostic Code 7913, diabetes mellitus is evaluated as follows: 20 percent is assigned when requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet; 40 percent is assigned when requiring insulin, restricted diet, and regulation of activities; 60 percent is assigned when requiring insulin, 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; and 100 percent is assigned when 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. The term "regulation of activities" is defined in the rating criteria for a 100 percent disability rating under Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities." Although not specified in the rating criteria, the Board finds that this definition also applies to the "regulation of activities" discussed in the 40 percent and 60 percent disability ratings. Additionally, medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). The rating criteria for diabetes are successive and consideration of 38 C.F.R. § 4.7 is not required. See Camacho, supra. "Successive" rating criteria means 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. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Further, 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, e.g., Heuer v. Brown, 7 Vet. App. 379, 385 (1995) (holding that criteria expressed in the conjunctive are connected by "and"); Malone v. Gober, 10 Vet. App. 539 (1997) (construing "and" as conjunctive in a statute); cf. Johnson v. Brown, 7 Vet. App. 95, 97 (1994) (holding that "or" in the rating criteria shows that each is an independent basis for granting that rating). A note for Diagnostic Code 7913 indicates the compensable complications of diabetes are to be evaluated separately, unless they "are part of the criteria used to support a 100 percent evaluation. Noncompensable evaluations are considered part of the diabetic process under diagnostic code 7913." 38 C.F.R. § 4.119. At an August 2010 VA diabetes examination, it was reported that the Veteran required insulin. Weight was stable, with no loss or gain since the last examination. Diet was self-regulated. There were no reported low blood sugar readings. The Veteran denied restriction of activities secondary to diabetes. The Veteran had been admitted for ketoacidosis in June 2010. The Veteran made trips to a diabetic care giver every 2 to 3 weeks. At an August 2014 VA examination, the examiner reported restricted diet and insulin required, more than one injection per day. There was no regulation of activities. The Veteran visited his diabetic care provider two times per month for episodes of ketoacidosis and less than twice a month for episodes of hypoglycemia. There were no episodes of hospitalization for ketoacidosis over the previous 12 months, but there were two hospitalizations for hypoglycemic reactions. There was no unintentional weight loss or loss of strength. The examiner indicated that hypertension was secondary to the Veteran's diabetes. This is the sole disability related to the Veteran's diabetes for which he is not in receipt of a separate evaluation currently. Based on the foregoing evidence, the Veteran's diabetes mellitus most nearly approximates a 20 percent disability rating. The criteria for the higher 40 percent rating have not been met. The criteria for a 40 percent rating under Diagnostic Code 7913 are conjunctive not disjunctive, i.e., there must be insulin dependence and restricted diet and regulation of activities. "Regulation of activities" is defined by Diagnostic Code 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, supra. The record is clear that the Veteran requires insulin and currently has a restricted diet. However, the medical evidence does not show regulation of activities as a result of his diabetes. The Board has considered the Veteran's lay statements regarding regulation of his activities during this time period. The Veteran is competent to state the type of treatment he receives for diabetes, but the treatment records do not support a finding of a prescribed "regulation of activities" as defined by Diagnostic Code 7913. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the weight of the evidence establishes that the Veteran has not been advised by a medical professional to avoid strenuous occupational and recreational activities due to his diabetes. In this regard, the Board is confined to evaluating the Veteran's diabetes pursuant to the rating criteria. Additionally, the record does not reflect that the Veteran meets the criteria for ratings in excess of 40 percent, as the ratings for 60 and 100 percent continue to require regulation of activities, in addition to more advanced symptoms. With respect to the Veteran's hypertension associated with his diabetes, the record does not indicate that it warrants a compensable evaluation under Diagnostic Code 7101. 38 C.F.R. § 4.104. The record includes a March 2016 VA hypertension examination, in which the Veteran's systolic reading was 120 and the Veteran's diastolic reading was 70. The Veteran did not have a history of diastolic readings of predominantly 100 or more. These readings are consistent with the medical evidence of record. As a result, a separate compensable evaluation for hypertension under Note (1) of Diagnostic Code 7913. The Board finds that the increased rating claim for this period must be denied. The preponderance of the evidence is against a finding that the Veteran's diabetes mellitus requires regulation of activities. Accordingly, the Board concludes that the symptoms more closely approximate the criteria for the currently assigned 20 percent rating during the entire period. In reaching that conclusion, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Increased Evaluation Constricted Fields of Vision and Decreased Acuity The Veteran is in receipt of three separate evaluations for diabetic retinopathy. He is currently in receipt of a 50 percent evaluation for associated constricted fields of vision under Diagnostic Code 6080, effective April 20, 2010. The Veteran has challenged the initial evaluation. In addition, he is in receipt of a 20 percent evaluation for decreased visual acuity, effective April 20, 2010, and a 40 percent evaluation effective August 28, 2014, under Diagnostic Code 6080-6066. The Veteran had a noncompensable evaluation prior to April 20, 2010, the date of his increased rating claim. With respect to impairment of the field of vision, 38 C.F.R. § 4.76a , Table III (2016), the normal visual field extent at the 8 principal meridians totals 500 degrees. The normal for the 8 principal meridians are as follows: 85 degrees temporally; 85 degrees down temporally; 65 degrees down; 50 degrees down nasally; 60 degrees nasally; 55 degrees up nasally; 45 degrees up; and 55 degrees up temporally. The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45 degree principal meridians. Under Diagnostic Code 6080, visual field defects are evaluated as follows: A 10 percent evaluation for remaining field of 46 to 60 degrees bilaterally or unilaterally; with remaining field of 31 to 45 degrees unilaterally; with remaining field of 16 to 30 degrees unilaterally; loss of superior half of visual field bilaterally or unilaterally; loss of interior half of visual field unilaterally; loss of nasal half of visual field bilaterally or unilaterally; and loss of temporal half of visual field unilaterally. A 20 percent evaluation if assigned for remaining field of 6 to 15 degrees unilaterally. A 30 percent evaluation is assigned for remaining field of 31 to 45 degrees bilaterally; remaining field of 5 degrees unilaterally; loss of inferior half of visual filed bilaterally; loss of temporal half of visual field bilaterally; and homonymous hemianopsia visual filed defects. A 50 percent rating is assigned for remaining field of 16 to 30 degrees bilaterally. A 70 percent rating is assigned for remaining field of 6 to 15 degrees bilaterally. A 100 percent rating is assigned for concentric contraction of visual field with remaining field of 5 degrees bilaterally. 38 C.F.R. § 4.79. Visual impairment is also rated based on impairment of visual acuity (excluding developmental errors of refraction) and muscle function. 38 C.F.R. § 4.79. For decreased visual acuity, the severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.79 . Under those criteria, impairment of central visual acuity is rated from 0 percent to 100 percent based upon the degree of the resulting impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. 38 C.F.R. § 4.79, Diagnostic Codes 6061-6066 (2016). 38 C.F.R. § 4.76(b) dictates that evaluation of visual acuity should be done on the basis of corrected distance vision with central fixation, unless the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye. A 10 percent rating is warranted only when there is (1) 20/50 vision in one eye with 20/40 or 20/50 vision in the other eye; (2) 20/70 vision in one eye with 20/40 vision in the other eye; or (3) 20/100 vision in one eye with 20/40 vision in the other eye. 38 C.F.R. § 4.79, Diagnostic Code 6066. A 20 percent rating is warranted when there is (1) 20/70 vision in one eye with 20/50 vision in the other eye; (2) 20/100 vision in one eye with 20/50 vision in the other eye; (3) 20/200 vision in one eye with 20/40 vision in the other eye; or (4) 15/200 vision in one eye with 20/40 vision in the other eye. 38 C.F.R. § 4.79, Diagnostic Code 6066. A 30 percent rating is warranted (1) when vision in both eyes is correctable to 20/70; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/50; (5) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/40; (6) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/40; and (7) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, 6066. A 40 percent rating is warranted (1) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/70; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/50; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/50 or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.79, Diagnostic Codes 6063, 6064, 6065, 6066. In addition, the General Rating Formula for Diagnostic Codes 6000 through 6009 provides for a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. To determine the rating for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service-connected, separately rate the visual acuity and visual field defect, expressed as a level of visual acuity, and combine them under the provisions of §4.25. 38 C.F.R. § 4.77 (c). Lastly, under the new rating criteria the maximum rating for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. 38 C.F.R. § 4.75 (d). The rating for visual impairment may be combined with ratings for other disabilities of the same eye that are not based on visual impairment, such as disfigurement under Diagnostic Code 7800. At a May 2010 eye examination, corrected distance vision of the right eye was 20/30 and 20/200 in the left eye. There was no improvement with changes in refractions in the left eye. Examination findings documented on the Goldman Charts indicate an average visual contraction of the left eye of 21 degrees and an average visual contraction of the right eye of 25 degrees. At an August 2014 VA examination, corrected distance vision of the right eye was 20/40 or better and 20/200 in the left eye. The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision. There was not anatomical loss, light perception only, extremely poor vision or blindness of either eye. Examination findings documented on the Goldman Charts indicate an average visual contraction of the left eye of 35 degrees and an average visual contraction of the right eye of 35 degrees. As noted, the period on appeal dates back to April 20, 2010. Effective that date, the Veteran had a 50 percent evaluation for associated constricted fields of vision and a 20 percent evaluation for decreased visual acuity, with an increased evaluation of 40 percent effective August 28, 2014. The increased 40 percent evaluation for visual acuity was granted by the RO in a December 2014 rating decision pursuant to the provisions of 38 C.F.R. § 4.77(c). Based on the evidence of record, the Board finds that an evaluation in excess of 50 percent for constricted fields of vision associated with diabetic retinopathy is not warranted for any period on appeal. The medical evidence does not indicate that the Veteran has experienced remaining field of vision of less than 16 to 30 degrees bilaterally. As noted in December 2014 rating decision, results from the August 2014 VA examination are actually more consistent with a 30 percent evaluation, due to remaining field of vision of 31 to 45 degrees bilaterally. With respect to the Veteran's 20 percent evaluation effective April 20, 2010 and 40 percent evaluation effective August 28, 2014 for decreased visual acuity, the Board finds that a uniform evaluation of 40 percent is warranted pursuant to the provisions of 38 C.F.R. § 4.77(c). The Board finds that the RO appropriately granted a 40 percent evaluation effective August 28, 2014, in the December 2014 rating decision, the result of combined disability evaluations under 38 C.F.R. § 4.25 pursuant to the provisions of 38 C.F.R. § 4.77(c), and decreased visual acuity warranting a 20 percent evaluation (20/200 in the left eye and 20/40 in the right eye) and constricted visual field consistent with a 30 percent evaluation. IV. Increased Evaluation Diplopia In addition, the Veteran has a noncompensable evaluation for diplopia associated with diabetic retinopathy, effective April 20, 2010 under Diagnostic Code 6090. Diagnostic Code 6090 Note (1) indicates that diplopia that is occasional or correctable with spectacles is evaluated at 0 percent. At the May 2010 VA examination, the Veteran reported double vision in the left eye for about 9 months after cataract and laser surgery. However, there was no diplopia reported on testing. The August 2016 VA eye examination was negative for diplopia. To the extent that the Veteran has experienced diplopia during this period, the medical evidence suggests that it has been occasional and does not warrant a compensable evaluation. ORDER Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II, with hypertension is denied. Entitlement to an initial evaluation in excess of 50 percent for diabetic retinopathy with constricted fields of vision is denied. Entitlement to an evaluation of 40 percent for diabetic retinopathy causing decreased visual acuity prior effective April 20, 2010, is granted. Entitlement to an evaluation in excess of 40 percent for diabetic retinopathy causing decreased visual acuity is denied. Entitlement to an initial compensable evaluation for diabetic retinopathy with diplopia is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs