Citation Nr: 1802262 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-23 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a rating in excess of 20 percent for diabetes mellitus. ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1961 to April 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for type 2 diabetes mellitus with erectile dysfunction (ED), rated 20 percent, effective June 3, 2009. 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). FINDING OF FACT At no time under consideration is the Veteran's diabetes mellitus shown to have required regulation of activities to maintain glycemic control (in addition to insulin and restricted diet); separately ratable complications of diabetes other than peripheral neuropathy of both upper and both lower extremities and ED are not shown. CONCLUSION OF LAW A rating in excess of 20 percent for diabetes mellitus is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code (Code) 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as this appeal is from the rating decision that granted service connection for the Veteran's diabetes mellitus and assigned a disability rating and effective date for the award, the purpose of statutory was met, and such notice is no longer necessary. A statement of the case properly provided notice on the downstream issue of entitlement to an increased initial rating. All pertinent private and VA treatment records are associated with the record. The Veteran was afforded VA examinations in April 2011 and December 2013 (and pertinent specialty examinations in December 2015). A duty to assist omission is not alleged. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("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). Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). 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. The Veteran's ED is separately compensated by an award of Special Monthly Compensation (SMC); he has not disagreed with that award, and that matter is not for consideration herein. Furthermore, a May 2016 rating decision granted service connection and assigned separate (20 percent, each) ratings for complications of diabetes consisting of peripheral neuropathy of both upper and both lower extremities. The Veteran has not expressed disagreement with the May 2016 rating decision, the ratings for the peripheral neuropathy likewise are not for consideration herein. Diabetes mellitus is rated under Code 7913, which provides for a 20 percent rating when the diabetes requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is to be assigned when insulin, a restricted diet, and [emphasis added] regulation of activities are required. A 60 percent rating is warranted when insulin, a restricted diet and regulation of activities are required, along 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 100 percent rating requires 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 rated. "Regulation of activities" is defined as a situation in which the veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,466 (May 7, 1996) (defining "regulation of activities," as used by VA in Code 7913). Note 1 to Code 7913 provides that compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. When the appeal is from the initial rating assigned with an award of service connection, the severity of the disability at issue during the entire period from the initial assignment of the disability rating to the present is to be considered, and "staged" ratings may be assigned, based on facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. In March 2009 correspondence a private physician (U.M., M.D.) noted that the Veteran was under his care, and had a medical history significant for type 2 diabetes for greater than five years. The RO thereafter asked Dr. U.M. to provide records of the Veteran's treatment for diabetes. Such records were received in September 2009 and show a diagnosis of, and treatment for, diabetes mellitus (including with insulin). They do not show that the Veteran was instructed to restrict activities to control the diabetes. Also received that month were records pertaining to a hospitalization and surgery for an unrelated condition, during which a diagnosis of diabetes and treatment with insulin were noted. On April 2011 examination for diabetes on a fee basis on behalf of VA, the Veteran denied hospitalization for diabetic ketoacidosis, and episodes of hypoglycemia. He reported a progressive loss of strength in the arms and legs, and denied weight loss or gain. He reported that he experiences anal pruritis. Treatment included oral medication and insulin, and reported he was not on a restricted diet. Physical examination found blood pressure readings of 140/90, 138/88, and 140/90 (it was noted that the Veteran did not have a history of hypertension. The Veteran was described as well-developed and well-nourished. The Veteran's eyes were considered to be within normal limits, and there were no signs of skin disease. Rectal examination was normal. Peripheral nerve involvement was not evident. The examiner noted that the effect of the Veteran's diabetes on occupational functioning was tiredness and inability to participate in strenuous activities. It was noted that there were no secondary complications of the eyes, heart, skin, kidney, hypertension, gastrointestinal system. 2010 and 2011 treatment records received from Dr. U.M. in May 2011 include several notations of a history of renal manifestations; note an "inadequacy of penile erection", and note that the Veteran had been placed on a low fat diet, but was noncompliant. It was also noted that he was exercising at least 30 minutes, 3 x wk. In a letter received in May 2011, Dr. U.M. indicated that the Veteran's "past medical history" was significant for type 2 diabetes with renal manifestations (uncontrolled). In September 2013 correspondence, Dr. U.M. states that the Veteran was placed on a sliding scale insulin regimen during a hospitalization in October 2007 [i.e., prior to the award of service connection for diabetes].. On December 2013 VA examination it was noted that the Veteran's diabetes required oral hypoglycemic agents and insulin more than one injection a day. It was noted that the Veteran did not require regulation of activities as part of medical management of diabetes mellitus. He saw his diabetic care provider less than twice a month. It was noted that he had not been hospitalized for ketoacidosis or hypoglycemic reactions, and had not had progressive unintentional weight loss or loss of strength attributable to diabetes. In January 2014 correspondence the Veteran's private physician notes that his diabetes was uncontrolled, and therefore in November 2013 his insulin intake was increased from 100 units to 125 units two times a day. On November 2015 examination for peripheral neuropathy complications of diabetes mellitus, the Veteran was found to have peripheral neuropathy complications of both upper and both lower extremities. [As was noted above, a subsequent rating decision granted service connection, and assigned 20 percent ratings, each, for the neurological complications, and the ratings for such impairment are not at issue herein.] On November 2015 nephrology examinations it was noted that Veteran had a history of frequent urination (which was attributed to prostate enlargement), but not one specific for chronic kidney disease. Diagnostic studies established he did not have renal dysfunction. The examiner indicated that there was no diagnosis of kidney disease because no pathology was found. The criteria for rating diabetes are cumulative (i.e. progressive increases in ratings require the criteria for the lower ratings in addition to those additional criteria that distinguish the higher rating. Furthermore, they are stated in the conjunctive, and all criteria so stated must be met to warrant the particular rating. Accordingly, to warrant the next higher (40 percent) rating in this case the evidence must show that in addition to insulin and restricted diet, the Veteran's diabetes has required regulation of activities. The record does not show that at any time under consideration the Veteran's diabetes has required regulation (avoidance) of activities. While private treatment records show that the impact of the Veteran's diabetes on his functioning is that he is unable to engage in strenuous activities, at no time did his treatment include instructions to avoid or restrict activities. In fact, medical reports indicate that the Veteran was exercising 3 times a week, apparently as part of his treatment regimen (i.e., he was instructed to exercise, rather than to avoid such activity). The 2013 VA examiner specifically stated that the Veteran's diabetic care did not require restriction of activities. Accordingly, the criteria for a 40 percent rating are not met, and such rating is not warranted. Because the criteria for progressively increasing ratings for diabetes are cumulative, it follows that the criteria for still higher ratings are also not met. The analysis turns to whether or not the Veteran has additional (to the separately rated peripheral neuropathy and SMC-compensated ED) separately ratable complications of his diabetes. The record does not show any such complications. The Veteran specifically raised the matter of entitlement to a separate rating for nephropathy (apparently based on notations in private treatment records of a history of uncontrolled renal manifestations). However, those private records do not show a diagnosis of a chronic renal disorder or any findings specific for such disorder. The Veteran was afforded a November 2015 renal specialty examination to ascertain whether or not he has a chronic renal disorder. Diagnostic studies for such disorder were normal, and it was found that the Veteran has no pathology to support a diagnosis of a chronic kidney disorder (it was noted in the course of the examination that urinary frequency symptoms attributed to renal disability were instead related to nonservice-connected prostate enlargement). Accordingly, a separate compensable rating for renal dysfunction is not warranted. The preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. ORDER A rating in excess of 20 percent for diabetes mellitus is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs