Citation Nr: 18142382 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 17-00 637 DATE: October 15, 2018 ORDER Entitlement to an increased rating greater than 20 percent for diabetes mellitus, type II, is denied. REMANDED Whether the reduction of the disability rating for a right ankle disability from 20 percent to 10 percent, effective November 4, 2015, was proper, to include entitlement to an increased rating for a right ankle disability, is remanded. Entitlement to an increased rating greater than 10 percent for peripheral neuropathy of the left lower extremity is remanded. Entitlement to an increased rating greater than 10 percent for peripheral neuropathy of the right lower extremity is remanded. Entitlement to an increased rating for major depressive disorder greater than 30 percent prior to September 14, 2015 and greater than 50 percent from September 14, 2015 is remanded. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s diabetes mellitus, type II, requires insulin and restricted diet, but does not require the regulation of activities. CONCLUSION OF LAW The criteria for an increased rating greater than 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1993 to March 1994, from February 2003 to January 2004, from November 2005 to April 2007, and from June 2007 to June 2008. As a preliminary matter, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions with regard to the Veteran’s claim for entitlement to an increased rating for diabetes mellitus, type II. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an increased rating greater than 20 percent for diabetes mellitus, type II The Veteran contends that an increased rating greater than 20 percent is warranted for his diabetes mellitus, type II. Diabetes mellitus is rated under Diagnostic Code 7913 of 38 C.F.R. § 4.119. The Veteran currently is rated at 20 percent, which, under Diagnostic Code 7913, is awarded where the disorder requires insulin and a restricted diet, or requires an oral hypoglycemic agent and a restricted diet. A 40 percent rating is awarded when diabetes mellitus requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is for application when the disorder requires 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 maximum 100 percent rating is warranted where the disorder requires 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. Competent medical evidence is required to establish “regulation of activities,” namely, avoidance of strenuous occupational and recreational activities, for a 40 percent rating under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). Because of the successive nature of the rating criteria for diabetes, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Stated another way, if a component is not met at any one level, a veteran can only be rated at the level that did not require the missing component. Id. Under Note 1 to 38 C.F.R. § 4.119, Diagnostic Code 7913, compensable complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent evaluation. In this regard, the RO has separately rated the Veteran’s complications of diabetes mellitus, including peripheral neuropathy of the right lower extremity; peripheral neuropathy of the left lower extremity; and nephropathy with hypertension. The Veteran’s retinopathy is considered cumulatively within his current rating for diabetes mellitus, type II. In May 2015, the Veteran underwent a VA examination to assess the severity of his diabetes mellitus, type II. The Veteran admitted that he did not strictly follow his diabetic diet and that he experienced hypoglycemic reactions two to three times per week which were treated at home. The examiner reported that the Veteran was prescribed an oral hypoglycemic agent and that he required more than one injection of insulin per day. However, the examiner stated that the Veteran did not require regulation of activities as part of the medical management of his diabetes mellitus. The examiner indicated that the Veteran visited his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month, and that he has had no episodes of ketoacidosis or hypoglycemia which have required hospitalization over the prior 12 months. There was no progressive unintentional weight loss or loss of strength attributable to diabetes mellitus. The examiner noted that the Veteran had complications of diabetes mellitus including peripheral neuropathy and nephropathy or renal dysfunction. Diagnostic testing revealed a most recent A1C value of 9.2 percent and a fasting plasma glucose of 108 mg/dL. The examiner diagnosed diabetes mellitus, type II and reported that the Veteran’s diabetes mellitus, type II, did not impact his ability to work. In May 2015, the Veteran underwent a VA eye conditions examination. The Veteran reported blurred vision for near vision, and noted that he was scheduled to receive newly prescribed eyeglasses. On examination, there was uncorrected distance visual acuity of 20/40 or better in each eye, uncorrected near visual acuity of 20/40 or better in each eye, corrected distance vision of 20/40 or better in each eye, and corrected near visual acuity of 20/40 or better in each eye. The pupils were round and reactive to light with no afferent pupillary defect. There was no anatomical loss, light perception only, extremely poor vision or blindness, astigmatism, or diplopia. The results of tonometry showed right eye pressure of 20 and left eye pressure of 18. External examination of the lids and lashes revealed collarettes and mild foamy meib gland secretions on each eye. The right conjunctiva/sclera were normal, and there was nasal pterygium in the left. The right cornea was normal and the left showed a nasal pterygium 2.3 millimeters (mm.) onto the cornea. The anterior chambers, irises, and lenses of both eyes was normal. Fundus examination showed two dot hemorrhages on the left macula but normal optic discs, right macula, right and left vessels, and right and left vitreous. The examiner noted that the dilation was limited, and that the periphery were not visualized. There was no visual field defect found. There was contraction of a visual field but no loss of a visual field, no scotoma, and no legal blindness. There was no history of corneal transplant or keratoconus, but there was left pterygium. The examiner indicated that the left eye nasal pterygium did not cause a decrease in visual acuity. The examiner noted that the Veteran had left eye retinopathy described as very mild nonproliferative diabetic retinopathy of the left eye, not causing decrease in visual acuity or visual field defect. The diagnoses were nasal pterygium of the left eye, blepharitis, and mild nonproliferative diabetic retinopathy. VA treatment records from 2014 through 2016 reveal diagnoses of and treatment for diabetes mellitus. The records show that the Veteran was prescribed insulin to treat his diabetes mellitus. None of the records suggest that the Veteran was required to regulate his activities. In fact, records from 2016 note that the Veteran was encouraged to exercise regularly. In November 2015, the Veteran underwent another VA diabetes examination. The Veteran reported one instance of reporting to his VA physician to treat persistent uncontrolled blood sugar levels, noting that he had difficulty adhering to his therapeutic regimen due to study and work. He denied hypoglycemic reactions and hospital visits due to uncontrolled blood sugar levels. The examiner reported that the Veteran required a prescribed oral hypoglycemic agent and more than one injection of insulin per day to treat his diabetes mellitus, but that his diabetes mellitus, type II, did not require the regulation of activities as part of the medical management of his diabetes. Additionally, the examiner stated that the Veteran visited his diabetic care provider less than two times per month for treatment of ketoacidosis and hypoglycemia, and that he has not been hospitalized for ketoacidosis or hypoglycemia over the prior 12 months. The examiner indicated that there was no progressive weight loss or loss of strength due to diabetes mellitus. Complications of diabetes were identified as diabetic peripheral neuropathy, diabetic nephropathy, and diabetic retinopathy. Hypertension was identified as being secondary to diabetes mellitus. Diagnostic testing revealed an A1C value of 9.3 percent and a fasting plasma glucose reading of 138 mg/dL. The examiner diagnosed diabetes mellitus, type II and stated that the Veteran’s diabetes mellitus did not impact his ability to work. After careful review of the record, the Board finds that the Veteran does not meet the criteria for an increased rating greater than 20 percent for diabetes mellitus, type II, at any time during the appeal period. While the medical and lay evidence documents that the Veteran requires insulin and restricted diet to treat his diabetes mellitus, type II, the evidence does not show that he is required to regulate his activities, which is required to establish an increased rating of 40 percent. Regulation of activities means avoidance of strenuous occupational and recreational activities. See 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining “regulation of activities,” as used by VA in Diagnostic Code 7913). Medical evidence is required to establish that occupational and recreational activities have been restricted under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 365 (2007) (citing 61 Fed. Reg. 20,440) (May 7, 1996). Although the evidence demonstrates that the Veteran’s diabetes required insulin and restricted diet, the evidence of record does not show medical evidence establishing that occupational and recreational activities were restricted due to diabetes mellitus. See Camacho, 21Vet. App. at 364 (medical evidence of record must support finding that a veteran was instructed not to engage in strenuous recreational and occupational activities). There is no indication of physician prescribed regulation of activities to manage the Veteran’s diabetes mellitus during the appeal period. To the contrary, the May 2015 and November 2015 VA examiners both concluded that the Veteran’s diabetes did not require regulation of activities as part of medical management. Additionally, the VA treatment records suggest that he was encouraged to exercise. As the medical evidence does not establish that the Veteran’s diabetes required regulation of activities, an increased rating greater than 20 percent is not warranted under the pertinent rating criteria. 38 C.F.R. § 4.119, Diagnostic Code 7913. The Board also notes that the Veteran’s diabetic retinopathy is included in his current rating for diabetes mellitus. Regarding the Veteran’s diabetic retinopathy, the Veteran’s May 2015 VA examination showed uncorrected distance vision, uncorrected near vision, corrected distance vision, and corrected near vision of 20/40 or better in each eye. Examination of the pupils, anterior chamber, iris, and lenses was normal. Although the left conjunctiva/sclera and cornea revealed a nasal pterygium, the examiner indicated that this did not impact the Veteran’s vision. The optic discs, vessels, and vitreous were normal in each eye. The left macula showed two dot hemorrhages, and the periphery were not visualized due to limited dilation. No visual field defect was identified. The examiner noted that the Veteran’s retinopathy was very mild and nonproliferative and did not cause any decrease in visual acuity or visual field defect. The Board finds that the Veteran’s diabetic retinopathy does not warrant a separate compensable evaluation. In particular, the evidence of record does not show unilateral or bilateral damage to the Veteran’s retina with irregular, duplicated, enlarged, or diminished image. 38 C.F.R. § 4.79, Diagnostic Code 6011. Additionally, although the evidence shows diagnoses of diabetic retinopathy, the evidence does not show that these disabilities cause visual impairment or incapacitating episodes. In that regard, the Veteran’s visual acuity was 20/40 or better for corrected and uncorrected near and distance vision in both eyes. Additionally, the May 2015 VA examiner stated that the Veteran’s diabetic retinopathy did not cause a decrease in visual acuity or a visual field defect. Thus, the evidence does not demonstrate either visual impairment due to diabetic retinopathy or incapacitating episodes due to diabetic retinopathy sufficient to establish a separate compensable rating under the pertinent rating criteria. As the evidence does not reflect that the Veteran’s diabetic retinopathy causes visual impairment or incapacitating episodes, a separate compensable evaluation for this disability which has been associated with the Veteran’s diabetes mellitus is not warranted. 38 C.F.R. § 4.79, Diagnostic Code 6006. Because the criteria for a rating of 40 percent or greater have not been met, an increased rating greater than 20 percent is not warranted for diabetes mellitus. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against an evaluation in excess of 20 percent for the Veteran’s service-connected diabetes mellitus, type II, there is no reasonable doubt to be resolved in this case, and the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered whether the Veteran’s claim should be referred for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran’s circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this case, the Board finds that referral for extraschedular consideration is not warranted. As shown in the above discussion, the symptoms of the Veteran’s service-connected diabetes mellitus, type II, are contemplated by the rating criteria. See Thun, 22 Vet. App. at 115. A comparison of the Veteran’s symptoms and functional impairment with the schedular criteria does not show that the Veteran’s disability presents “such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b). Consequently, the Board finds that the schedular evaluation is adequate to rate this disability. In the absence of this threshold finding, there is no need to consider whether there are “related factors” such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board’s finding that the rating criteria were adequate to evaluate the claimant’s disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore, referral for extraschedular consideration is not warranted. REASONS FOR REMAND 1. Whether the reduction of the disability rating for a right ankle disability from 20 percent to 10 percent, effective November 4, 2015, was proper, to include entitlement to an increased rating for a right ankle disability, is remanded. In November 2015, the Veteran underwent a VA ankle examination. In Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. 28 Vet. App. 158. The final sentence of 38 C.F.R. § 4.59 provides that “[t]he joints involved should be tested for pain on both active and passive range of motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint.” The Court found that, to be adequate, a VA examination of the joints must include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. The November 2015 VA examination is inadequate as it does not fully comply with the requirements of 38 C.F.R. § 4.59, as discussed in Correia. The November 2015 VA examination provided one set of range of motion results for each ankle, but did not indicate whether these results were from testing conducted in active motion, passive motion, weight-bearing, or nonweight-bearing. Accordingly, they do not satisfy the requirements of 38 C.F.R. § 4.59 as discussed in Correia. Additionally, the November 2015 VA examination reported that there was pain on range of motion of the right ankle which caused functional loss, but did not state the point at which pain began. Based on the foregoing, the Board finds that this issue should be remanded, and that the Veteran should be afforded a new VA examination that fully satisfy the requirements of Correia. Additionally, in a September 2018 informal hearing presentation, the Veteran’s representative stated that the Veteran’s right ankle disability has increased in severity since his November 2015 VA examination. The representative also explained that the Veteran experienced severe flares of his right ankle disability, and that during such flares, his range of motion or ability for locomotion, standing, and bending were severely restricted. The representative also indicated that the Veteran could not bear weight on his ankle during such flares. Accordingly, the VA examiner should explicitly discuss the impact of the flare-ups of right ankle symptomatology. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups if the examination is not conducted during such a flare-up, and use this information to characterize additional functional loss during flare-ups.). 2. Entitlement to an increased rating greater than 10 percent for peripheral neuropathy of the left lower extremity; entitlement to an increased rating greater than 10 percent for peripheral neuropathy of the right lower extremity; and entitlement to an increased rating for major depressive disorder greater than 30 percent prior to September 14, 2015 and greater than 50 percent from September 14, 2015 are remanded. The Board finds that a remand is necessary in this case to provide the Veteran with new VA examinations to determine the severity of his service-connected right and left lower extremity peripheral neuropathy as well as his service-connected major depressive disorder. In a September 2018 informal hearing presentation, the Veteran’s representative stated that the Veteran’s right and left lower extremity peripheral neuropathy had worsened in severity since his last VA examination in November 2015. In a December 2016 substantive appeal, the Veteran stated that his depressive symptoms have worsened in severity, and that his capacity to walk has become severely hindered. The Veteran is entitled to a new VA examination where there is evidence that a condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran and his representative are also competent to provide an opinion that a disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Accordingly, the Veteran should undergo new VA examinations to assess the severity of his service-connected right and left lower extremity peripheral neuropathy and his service-connected major depressive disorder. 3. Entitlement to a TDIU is remanded. The claim for entitlement to TDIU is inextricably intertwined with the remaining claims on appeal and a decision cannot be rendered on this issue until the Veteran’s other claims are adjudicated. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected right ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Range of motion should be reported in degrees, noting by comparison the normal range of motion. The examiner should also test and report the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If there is pain on range of motion, the examiner must state at which point pain began. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due the right ankle disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for a VA examination to assess the current level of severity of his right and left lower extremity peripheral neuropathy. The electronic claims file must be made available to and reviewed by the examiner. All indicated tests and studies should be conducted. All pertinent symptomatology and findings should be reported in detail. The examiner should specifically address the Veteran’s statements concerning the flare-ups and functional limitations caused by his service-connected peripheral neuropathy of the right and left lower extremities. 3. Schedule the Veteran for a comprehensive VA psychiatric examination to determine the current severity of the Veteran’s major depressive disorder. The evidence of record, in the form of electronic records, and any additional VA treatment or evaluation records in digital formats must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must provide accurate and fully descriptive assessments of all psychiatric symptoms. The examiner must comment upon the presence or absence, and the frequency or severity of symptoms due to depression. The examiner must also provide an opinion whether the functional effects of the Veteran’s depression and any other psychiatric disability or characteristics, signs, or symptoms of other disability that are not differentiable from the Veteran’s depression render him unable to obtain or retain employment. If the examiner cannot provide any of the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. When the above development has been completed, readjudicate the issues on appeal, including the issue of entitlement to a TDIU. If any benefit sought on appeal remains denied, issue a supplemental statement of the case to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Katz, Counsel