Citation Nr: 1803363 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 17-13 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for type II diabetes mellitus. 2. Entitlement to special monthly compensation based on the need for regular aid and attendance or by reason of being housebound. WITNESSES AT HEARING ON APPEAL The Veteran and L.J. ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1954 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. The record was held open for 30 days following the hearing to allow for the submission of additional evidence. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. 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 entitlement to special monthly compensation based on the need for aid and attendance or by reason of being housebound is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's service-connected diabetes mellitus requires a restricted diet, but not insulin or a regulation of activities. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that the Veteran has not 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 a duty to assist argument). Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. In this case, as explained below, uniform evaluations are warranted. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran's service-connected diabetes mellitus is currently assigned a 20 percent evaluation pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under that diagnostic code, a 20 percent disability evaluation is assigned for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. A 40 percent disability evaluation is contemplated for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent disability evaluation is warranted for diabetes mellitus requiring 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 100 percent evaluation is contemplated 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 progressive loss of weight and strength or complications that would be compensable if separately evaluated. The Court has held that, in order to demonstrate a regulation of activities, "medical evidence" is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase "regulation of activities" means "avoidance of strenuous occupational and recreational activities." Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent rating)). Successive rating criteria, such as Diagnostic Code 7913, is where 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 (2009). For example, the diagnostic code for diabetes mellitus (Diagnostic Code 7913) is successive because each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Camacho, 21 Vet. App. at 366. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected type II diabetes mellitus. The evidence of record establishes that the Veteran's diabetes mellitus requires an oral hypoglycemic agent and a restricted diet, but not insulin or a regulation of his activities. The evidence also establishes that this has been consistent over the entire period of appeal, thus any "staged" ratings would be unwarranted. VA examinations from March 2013, May 2015, and December 2016, all note that the Veteran's diabetes mellitus is managed by a restricted diet and requires a prescribed oral hypoglycemic agent; however, each examination report specifically noted that a regulation of activities was not required and that the Veteran does not require insulin. Similarly, during the November 2017 hearing, the Veteran specifically denied taking insulin and indicated that he was not required to restrict his activities due to his diabetes mellitus. Thus, the Board finds that the Veteran is not required to regulate his activities for the management of his diabetes mellitus and does not take insulin to treat the disability. As noted above, an evaluation of 40 percent requires insulin, a restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. Accordingly, an evaluation in excess of 20 percent is not warranted. In rendering this decision, the Board has also considered the lay evidence of record, to include the Veteran's reports during VA examinations and his testimony during the November 2017 hearing. However, as noted above, the Veteran has not reported that his diabetes mellitus required him to restrict his activities, and he has denied taking insulin to treat his condition. Therefore, the Veteran's lay statements also support a finding that an increased evaluation is not warranted. The Board notes that the December 2016 VA examiner noted that the Veteran had diabetic peripheral neuropathy, and during the hearing, the Veteran reported that he had been hospitalized as a result of falling due to his peripheral neuropathy. However, the Veteran has been already been granted service connection for that disability and assigned separate ratings which contemplate symptoms resulting from that condition. Similarly, the Veteran has been granted service connection for peripheral vascular disease associated with his diabetes mellitus. There is no evidence of any other service-connected diabetic complications. Indeed, the December 2016 examiner did not note any other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran's diabetes mellitus. Based upon the evidence of record, the Veteran has not been shown to meet the criteria for an increased evaluation under the rating criteria. Accordingly, the Veteran is not entitled to an evaluation in excess of 20 percent for his diabetes mellitus, type II. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER An evaluation for type II diabetes mellitus in excess of 20 percent is denied. REMAND During the November 2017 hearing, the Veteran's daughter, L.J. (initials used to protect privacy), reported that the Veteran's health had declined significantly within the past year which affected his ability to complete certain tasks, including driving, walking, preparing meals, cleaning his home, and shopping. She reported that the Veteran's service-connected peripheral neuropathy affected his ability to ambulate and that he had been hospitalized at West Anaheim Medical Center for falls sustained as a result of his neuropathy. She indicated that at least one of these falls may have occurred in 2016. While the record contains evidence from West Anaheim Medical Center documenting hospitalizations due to falls in 2014 and 2015, there are no records from 2016. Thus, a remand is necessary to obtain records from 2016 which document the Veteran's decline in health and any hospitalizations that may have occurred. The Veteran's daughter also indicated that the Veteran sought treatment from private physicians, Dr. D and Dr. O, in 2016. While the record contains earlier medical records from these physicians, there do not seem to be any updated records from 2016 and 2017. As such, on remand, these records should also be obtained. During the hearing, the Veteran also reported that his dizziness affected his ability to ambulate. The record does not reflect that this symptom has been considered in relation to its effect on the Veteran's service-connected disabilities. In addition, given the testimony that the Veteran's health deteriorated in 2016, a remand is necessary to obtain an additional VA examination and opinion to ascertain whether the Veteran meets the requirements for special monthly compensation based on the need for regular aid and attendance or by reason of being housebound. 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. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the Veteran's service-connected disabilities. A specific request should be made for updated records from West Anaheim Medical Center pertaining to the Veteran's hospitalizations; records from Dr. D. (initials used to protect privacy; identified during the November 2017 hearing); and records from Dr. O (initials used to protect privacy; identified during the November 2017 hearing). After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity of his service-connected disabilities and to determine if he meets the requirement for aid and attendance. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's post-service medical records, assertions, and November 2017 hearing testimony. In this case, the Veteran has asserted that he requires aid and attendance because of his bilateral lower extremity peripheral neuropathy (associated with both the femoral and sciatic nerves), bilateral lower extremity peripheral vascular disease, and hearing loss. He has also asserted that he has dizziness which may result from these disabilities and contributes to his need for aid and attendance. After review of the file and examination(s), the examiner should specifically address the following: (a) The current symptomatology associated with the Veteran's various service-connected disabilities and the severity of those symptoms; (b) Whether the Veteran is so helpless or so nearly helpless as to require the regular aid and attendance of another person due to his service-connected disabilities. In making this determination, the examiner should specifically comment on whether the Veteran is unable to dress or undress himself, or to keep himself ordinarily clean and presentable; requires the frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; is unable to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; is unable to attend to the wants of nature; or has an incapacity, physical or mental, that requires care of assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment; or is bedridden. (e) For housebound purposes, the examiner should address whether the Veteran is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical area and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs