Citation Nr: 1803877 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-03 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity. 3. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity. 4. Entitlement to an initial rating in excess of 30 percent for coronary artery disease. 5. Entitlement to a total disability rating based upon individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1969 to August 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2011, March 2012, and July 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a March 2017 Travel Board hearing; a transcript of the hearing is associated with the record. The issues of entitlement to an evaluation in excess of 20 percent for peripheral neuropathy of the right lower extremity; entitlement to an evaluation in excess of 20 percent for peripheral neuropathy of the left lower extremity; entitlement to an initial evaluation in excess of 30 percent for coronary artery disease; and entitlement a total disability rating based upon individual unemployability (TDIU) are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's diabetes mellitus requires treatment with a prescribed oral hypoglycemic agent and a restricted diet; it has not required his medical provider regulate his occupational or recreational activities. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.120, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to service connection for diabetes mellitus was granted in an April 2010 rating decision. A 20 percent rating was assigned effective November 11, 2009. The March 2012 rating decision on appeal continued the 20 percent rating. The Veteran contends that a higher rating is warranted for diabetes mellitus. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. "Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings." Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citation omitted). VA accordingly concentrates on the evidence that establishes the state of the veteran's disability in the period one year before the veteran files his claim through the date VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The Veteran's disability is rated under DC 7913 pertaining to diabetes mellitus. This DC provides that when diabetes mellitus requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet, a 20 percent evaluation is merited. When insulin, restricted diet, and regulation of activities are required, it is evaluated as 40 percent disabling. Diabetes mellitus 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 rated, is rated 60 percent disabling. 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 rated, is rated 100 percent disabling. Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. 38 C.F.R. § 4.119, DC 7913. The criteria for a 40 percent rating for diabetes are conjunctive not disjunctive, i.e., there must be insulin dependence and restricted diet and regulation of activities. "Regulation of activities" is defined by DC 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 v. Nicholson, 21 Vet. App. 360 (2007). After review of the evidence of record, the Board finds that the Veteran's diabetes mellitus does not most nearly approximate the criteria associated with an increased evaluation. Although the record establishes that the Veteran's diabetes is treated with a prescribed oral hypoglycemic agent and a restricted diet, there is no medical evidence of regulation of activities. In fact, the December 2011 VA examiner specifically found that the Veteran's activities were not regulated due to diabetes. The VA examiner also determined that the Veteran did not require hospitalization for any episodes of ketoacidosis or hypoglycemic reactions and the Veteran reported less than twice monthly visits to his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions. Since this examination, the Veteran has not reported (and the record does not show) regulation of activities, hospitalizations for ketoacidosis or hypoglycemic reactions, or twice monthly visits for episodes of ketoacidosis or hypoglycemic reactions. Thus, the objective evidence does not establish that the Veteran's diabetes mellitus most nearly approximates the criteria contemplated by a rating in excess of 20 percent. The Board has also considered whether there were compensable complications of the diabetes, as directed by Note (1). The evidence does not currently show any such compensable complications other than the lower extremity periphernal neuropathies, which are rated separately. In sum, the Veteran's diabetes mellitus requires daily treatment with a prescribed oral hypoglycemic agent and a restricted diet, but has not required regulation of strenuous occupational and recreational activities. He has also not required hospitalization for episodes of ketoacidosis or hypoglycemic reactions or visited his diabetic health care provider twice a month or more. The disability clearly most nearly approximates the criteria associated with the currently assigned 20 percent rating and the claim for an increased initial evaluation is denied. The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. REMAND Remand is necessary to further develop the record. With regard to the Veteran's peripheral neuropathy, the Veteran's representative reported at the March 2017 hearing that the Veteran's neuropathy of the lower extremities had worsened and he was scheduled for a private nerve conduction study following the hearing. Because the record states that the Veteran's condition has worsened, an additional VA examination is necessary to determine the current level of the Veteran's peripheral neuropathy. Moreover, the Veteran should be given the opportunity to provide the results from the private study, as they have not been associated with the record. For the Veteran's coronary artery disease (CAD) claim, remand is necessary to address a March 20, 2017 medical release form, which authorized VA to obtain records from [REDACTED] through the "present" time. No follow up was performed on this release. Furthermore, remand is necessary to obtain an opinion with regard to aggravation of the Veteran's nonservice-connected heart condition; in an October 2012 statement, the Veteran contends that his service-connected CAD aggravated his nonservice-connected condition "to the point of requiring the placement of his AICD." This has not been addressed in the medical opinions and should be addressed on remand. Finally, the issue of entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) must also be remanded as it is inextricably intertwined with the claims for peripheral neuropathy and CAD. Because the determination of these issues would affect a TDIU analysis, they must be adjudicated before the issue of entitlement to TDIU may be decided. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that all issues "inextricably intertwined" with issues certified for appeal are to be identified and developed prior to appellate review). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to any private or VA treatment records for his claimed disabilities that have not been associated with the claims file, to include tests for peripheral neuropathy and treatment from [REDACTED]. A signed release form should be completed for each private treatment provider. All efforts to procure the records must be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected diabetic peripheral neuropathy of the bilateral lower extremities. The claims file must be made available to and reviewed by the examiner. The examiner should complete a thorough neurological examination of the Veteran's lower extremities. Based on the examination, and review of the claims file, the examiner should identify all sensory and motor impairment of the lower extremities due to the service-connected disability. The examiner should also provide an opinion with respect to any symptoms as to whether they are mild, moderate, moderately severe, or severe, or result in complete paralysis of any affected nerve. The examiner must provide a complete rationale (i.e. basis) for all stated medical opinions with reference to specific evidence in the claims file. 3. Obtain a VA medical opinion from an appropriate clinician. The claims file must be made available to the clinician for review; the report should reflect that such a review was conducted. The clinician is requested to review all pertinent records associated with the claims file and offer an opinion as to the following: a) Identify the condition requiring the implantation of the Veteran's AICD. b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the condition requiring the implantation of the AICD is caused or aggravated (beyond the natural progression) by his service-connected CAD? The clinician must provide a complete rationale (i.e. basis) for all stated medical opinions with reference to specific evidence in the claims file. If the clinician determines that an examination is necessary to provide an opinion, an appropriate examination should be scheduled. 4. Review the record to ensure that the foregoing development has been completed, and arrange for any additional development indicated. If the benefits are not granted in full, issue a supplemental statement of the case and provide the appellant an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters 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). ______________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs