Citation Nr: 18144174
Decision Date: 10/24/18	Archive Date: 10/23/18

DOCKET NO. 16-12 420
DATE:	October 24, 2018
ORDER
A rating in excess of 20 percent for diabetes mellitus is denied.
Service connection for erectile dysfunction, a complication of the service-connected diabetes mellitus, is granted.
Special monthly compensation (SMC) based on loss of use of a creative organ is granted.
Service connection for onychomycosis, a complication of the service-connected diabetes mellitus, is granted.
The claim of service connection for a heart disability, to include ischemic heart disease, is denied.
Service connection for insomnia disorder is granted.
The claim of entitlement to service connection for dyslipidemia is denied.
REMANDED
The issue of whether new and material evidence has been submitted to reopen the issue of entitlement to service connection for hypertension is remanded.
The issue of entitlement to service connection for an eye disorder is remanded.
The issue of entitlement to an initial rating in excess of 10 percent for residuals, fracture right leg and ankle sprain is remanded.
The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded.
The claim of entitlement to service connection for left sciatic nerve impairment is remanded.
The claim of entitlement to service connection for right sciatic nerve impairment is remanded.
Entitlement to a separate compensable rating for onychomycosis associated with the Veteran’s service-connected diabetes mellitus is remanded.
FINDINGS OF FACT
1. Throughout the appeals period, the Veteran’s diabetes mellitus required the use of insulin and a restricted diet; regulation of activities has not been shown.
2. The Veteran’s onychomycosis is a complication of his service-connected diabetes mellitus.
3. Resolving all doubt in his favor, the Veteran’s current erectile dysfunction is a complication of his service-connected diabetes mellitus.
4. Resolving all doubt in his favor, the Veteran’s loss of use of a creative organ is due to his service-connected diabetes mellitus.
5. A heart disability, to include ischemic heart disease, has not been shown during the pendency of the appeal.
6. Resolving all doubt in his favor, the Veteran’s insomnia disorder is related to service.
7. Dyslipidemia and hyperlipidemia are laboratory findings not ratable disabilities for VA compensation purposes.
CONCLUSIONS OF LAW
1. 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. § 4.119, Diagnostic Code 7913 (2017).
2. The criteria for service connection for onychomycosis, as a complication of the service-connected diabetes mellitus, have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.119, Diagnostic Codes 7913-7813 (2017).
3. The criteria for service connection for erectile dysfunction have been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §3.310 (2017).
4. The criteria for service connection for SMC based on loss of use of a creative organ have been met.  38 U.S.C. §§ 1114 (k), 5107 (2012); 38 C.F.R. §§ 3.102, 3.350(a) (2017).
5. The criteria for service connection for a heart disability, to include ischemic heart disease, have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
6. The criteria for service connection for insomnia disorder have been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
7. The criteria for service connection for dyslipidemia and hyperlipidemia have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active duty from December 1969 to December 1971, to include service in the Republic of Vietnam, from November 1970 to May 1971, and at Camp Lejeune, from February 1970 to September 1970.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 
In an August 2017 rating decision, the RO increased the initial rating for the Veteran’s residuals, fracture right leg and ankle sprain disability to 10 percent.  However, as such did not constitute a full grant of the benefit sought on appeal, the issue remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).
The issue of entitlement to service connection for diabetic retinopathy has been recharacterized as service connection of an eye disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009).
In June 2018, the Board obtained a medical expert opinion from the Veterans Health Administration.  The Veteran and his representative were provided a copy of the opinion and afforded the opportunity to submit additional evidence and argument.
In a brief received August 14, 2018, the Veteran raised the issue of entitlement to an effective date earlier than April 26, 2013, for residuals, fracture right leg and ankle sprain on the basis of clear and unmistakable error in the January 1973 rating decision that denied service connection for the disability.  As the Board cannot take jurisdiction of this claim, it is referred to the RO for appropriate action.
1. Diabetes Mellitus
The Veteran seeks a rating in excess of 20 percent for diabetes mellitus, which has been rated under 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017).  Under Diagnostic Code 7913, the next higher rating, a 40 percent, is assigned if diabetes requires insulin, a restricted diet, and regulation of activities.  A 60 percent rating is assigned if this condition 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 monthly visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated.  A 100 percent rating is assigned if this condition 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.  Id.
The following notes apply to 38 C.F.R. § 4.119, Diagnostic Code 7913.  Note (1): Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation.  Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913.  Note (2): When diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes.  Id.
Following VA examinations in December 2010, May 2014, and July 2017, examiners determined that the Veteran’s diabetes mellitus does not require regulation of activities.  Critically, VA treatment records show that the Veteran has been advised to lose weight.  See, e.g., VA treatment record (November 30, 2016) (showing that the Veteran was “encouraged to increase physical activity as much as possible”).
An evaluation in excess of 20 percent is not warranted because the medical evidence affirmatively establishes that the service-connected diabetes mellitus has not required regulation of activities.  See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (medical evidence is required to support the “regulation of activities” criterion).  As noted above, as recently as November 2016, physical activity was being recommended, while the December 2010, May 2014, and July 2017 VA examiners specifically noted that regulation of activities was not warranted.  Without a showing of “regulation of activities,” a rating in excess of 20 percent is not warranted because the criteria are conjunctive in nature.  See id.
In reaching the above conclusions, the Board has not overlooked the Veteran’s statements.  In this regard, the Veteran is competent to report what he sees and feels.  See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  However, in this case, the medical evidence of record clearly shows that a clinician has never indicated that regulation of the Veteran’s activities is required on account of his diabetes mellitus.  For these reasons, a rating in excess of 20 percent for diabetes mellitus is not warranted.
2. Complications of Diabetes Mellitus:  Onychomycosis, Erectile dysfunction, and SMC for Loss of Use of a Creative Organ
Service connection is warranted for onychomycosis, as the December 2010 VA examiner opined that such was aggravated by the Veteran’s diabetes mellitus.  While service connection for onychomycosis granted, for the reasons outlined in the remand section below, further development is needed to evaluate the current severity of the disorder.
Service connection for erectile dysfunction, and, by extension SMC for loss of use of a creative organ, is warranted.  In April 2014, a VA examiner opined that the Veteran’s diabetes mellitus does not cause or aggravate his erectile dysfunction.  However, in July 2017, a VA examiner opined that the Veteran’s erectile dysfunction is at least as likely as not due to diabetes mellitus.  Although the VA medical opinions regarding the etiology of the Veteran’s erectile dysfunction are at odds, each medical professional is competent to render a medical opinion, and a rationale was provided for each opinion.  At worst, the evidence with respect to whether the Veteran’s erectile dysfunction is related to his service-connected diabetes mellitus is in equipoise.  Accordingly, service connection for erectile dysfunction is warranted.  Additionally, SMC for loss of use of a creative organ is also warranted.
The Veteran asserts that tooth decay, hyperlipidemia, retinopathy, and erectile dysfunction are also complications of his service-connected diabetes mellitus.  The claim of entitlement to service connection for hyperlipidemia and retinopathy are discussed separately below.  As for tooth decay, the Board finds that such is not a complication of the Veteran’s service-connected diabetes mellitus.  While the Board acknowledges the Veteran’s opinion relating the two, the Board finds more probative the January 2016 VA examiner’s opinion that the Veteran’s tooth decay is related to neglect.  Unlike the VA examiner, the evidence does not show that the Veteran possesses the experience, training, or expertise needed to render an opinion as regarding a potential, causal relationship between tooth decay and diabetes mellitus.  Accordingly, as the January 2016 VA examiner’s opinion is the only competent evidence relevant to whether the Veteran’s tooth decay is a complication of his service-connected diabetes mellitus, the Board finds that service connection for tooth decay is not warranted.
No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case.  Beyond onychomycosis and erectile dysfunction, discussed below, the Veteran not been diagnosed with any other diabetes mellitus, and the medical evidence of record is silent for any other diseases or disabilities related to diabetes mellitus.  38 C.F.R. § 4.119, Diagnostic Codes 7900-7912, 7914-7919.  Accordingly, a rating in excess of 20 percent for diabetes mellitus is not warranted.
3. Heart Disability
The Veteran seeks service connection for heart problems for which he has been prescribed metoprolol.  See, e.g., Claim (April 29, 2013).
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).  “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.”  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
Here, the evidence shows that the Veteran does not have does not have a heart disorder, to include ischemic heart disease.  While he is competent to report symptoms such as chest pain and shortness of breath, he has not demonstrated the requisite medical expertise to self-diagnose a complex medical condition such as a heart disorder.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007).  Moreover, the competent medical evidence pertaining to the presence of a heart disability consists of the VA medical opinion dated April 2014, which shows that the Veteran does not have a current heart disorder.  The examiner acknowledged that the Veteran was prescribed metoprolol and simvastatin and that the Veteran has reported a history of atypical chest pains, but highlights that medical records show no indication for invasive evaluation of the heart or diagnosis pertaining to the heart.  Despite the Veteran’s prescriptions, the examiner concluded that the Veteran’s medical history shows no evidence of heart disability.  Since the April 2014 VA examination, treatment records show that physical examination of the heart has been normal and that the Veteran has consistently denied new or worsening symptoms of chest pain.  Additionally, he continues to take simvastatin to manage his cholesterol (discussed further below), but has discontinued metoprolol.  Most recently, a July 2017 VA diabetes examination report shows that the Veteran does not have any cardiac complications associated with his service-connected diabetes mellitus.  The Board finds that the VA examination reports are consistent with medical records throughout the pendency of the appeal, which show that the Veteran has not had a current heart disability.  Accordingly, as the competent medical evidence shows that the Veteran has not had a current heart disorder, service connection for a heart disorder is not warranted.
4. Insomnia Disorder
The Veteran seeks service connection for insomnia, which he attributes to nightmares and sleep disturbance related to his military service.  Indeed, the Veteran’s report of nightmares is both competent and credible, particularly in light if his combat service in the Republic of Vietnam.
In April 2014, a VA psychologist diagnosed insomnia disorder per DSM-5 guidelines.  The examiner opined that while the Veteran has several medical issues that may contribute to his insomnia, it is at least as likely as not due that insomnia disorder is due to his military service experiences.  Following the favorable April 2014, the RO requested a second opinion regarding the etiology of the Veteran’s insomnia disorder.  In June 2014, VA psychologist opined that the Veteran does not meet the criteria for a current psychological disorder, which would likely cause sleep problems, and that there is no indication that the Veteran’s current sleep disturbances are related to service.
The Board finds that the conflicting April 2014 and June 2014 medical opinions are in relative equipoise.  After resolving any doubt in the Veteran’s favor, the Board finds that service connection for insomnia disorder is warranted.
5. Dyslipidemia and Hyperlipidemia
The Veteran seeks service connection for dyslipidemia and hyperlipidemia, which he has related to his service-connected diabetes mellitus.
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).  “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.”  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Service connection is also warranted on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Hyperlipidemia and dyslipidemia, or elevated cholesterol, are considered to be laboratory results and not disabilities for compensation purposes.  See Schedule for Rating Disabilities; Endocrine System Disabilities, 61 Fed. Reg. 20440, 20445 (May 7, 1996).  The term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions.  38 C.F.R. § 4.1 (2017).  For these reasons, service connection for dyslipidemia and hyperlipidemia must be denied.
REASONS FOR REMAND
1. Hypertension: Claim to Reopen
The Veteran previously submitted a claim of entitlement to service connection for hypertension, which was denied in March 2006, for lack of current diagnosis, and in April 2011, on the basis that current the hypertension is not related to service or a service-connected disability.  The April 2011 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claim within the appeal period.  See 38 C.F.R. § 3.156(b).
In September 2018, the Veteran’s representative identified missing service treatment records (e.g., Report of Medical History on Separation from Service) and VA treatment records (beginning within one year after separation from service), which he contends show that the Veteran’s hypertension is related to service.  If obtained, these records may render the March 2006 and April 2011 rating decisions pending, thereby mooting the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection or hypertension.  Thus, the Board finds it necessary to defer consideration of the claim to reopen until the AOJ takes the steps necessary to secure the potentially outstanding treatment records. 
2. Eye Disorder
In April 2013, the Veteran submitted a service connection claim for diabetic retinopathy.
On VA examination in March 2014, the Veteran was diagnosed with cataracts and macular hole.  The examiner did not opine as to the etiology of the Veteran’s macular hole.  The examiner opined that the Veteran’s cataracts can be considered age appropriate and are less than likely related to the Veteran’s diabetes.  The examiner reasoned that cataracts are multifactorial in etiology and causes include aging.  However, the examiner noted that some types are seen to progress more quickly in the diabetic population. 
A July 2017 VA diabetes examination shows that the Veteran did not have any diabetic eye complications.  An August 7, 2017, VA treatment records show that Veteran was to be scheduled for diabetic eye examination; however, this examination has not been conducted.
The Board finds that VA eye examination is needed to gain additional insight into the nature and etiology of any current eye disorder.  First, VA examination is needed to determine whether the Veteran has developed diabetic retinopathy.  Second, VA examination is needed to address the etiology of any other current eye disorders, to include whether the Veteran’s cataracts were aggravated by his service-connected diabetes mellitus and whether any current disorder is related to the Veteran’s presumed in-service exposures in the Republic of Vietnam and Camp Lejeune.
3. Residuals, Fracture Right Leg and Ankle Sprain & TDIU
The Veteran seeks an initial rating in excess of 10 percent for residuals, fracture right leg and ankle sprain, which are currently evaluated under Diagnostic Code 5262 on the basis of impairment of tibia and fibula.
The Veteran contends that separate ratings are warranted under Diagnostic Codes 5262 and 5271 as symptoms impact limitation of the right knee and ankle.  See, e.g., Brief (March 7, 2018).  Indeed, the July 2017 VA examination report confirms that the Veteran’s service-connected disability impacts both the right knee and ankle.
The Board finds that a new VA examination is needed to comply with the last sentence of 38 C.F.R. § 4.59 as it pertains to testing the joints for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint (or for an explanation as to why such testing cannot be conducted).  See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  The most recent VA examination, which was conducted July 2017, does not provide this information.
Additionally, VA examination is needed to address functional limitations during flare-ups.  Since the July 2017 VA examination, which does not estimate the loss of function during flare-ups or after a period of repetitive use, the Veteran has reported complete loss of ankle motion with increased pain and swelling during flare-ups.  See Brief (March 7, 2018).  Accordingly, upon remand, if the examination is not conducted during a flare-up, the VA examiner will be asked to estimate functional loss during flare-ups based on the Veteran’s descriptions of his additional loss of function during flare-ups, information gleaned from his medical records, or discerned other sources available to the examiner.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017).  Such information is necessary to adequately understand his additional or increased symptoms and limitations experienced during flares.  Id.
The Board further notes that the Veteran’s treating physician opined that diffuse arthritis limits his ability to lift over 10 pounds, walk over 100 feet, stand more than 10 minutes, sit for more than hour, climb, balance, or reach over his head.  See VA treatment record (August 23, 2013).  Upon remand, the examiner is to address whether the Veteran’s diffuse arthritis is a manifestation of or otherwise related to his service-connected right leg fracture and ankle sprain.
The Veteran’s claim for TDIU is also remanded, as it is inextricably intertwined with his increased rating claim.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue).
4. Bilateral Sciatic Nerve Impairment
The Veteran seeks service connection for bilateral impairment of sciatic nerve, which he contends is secondary to “arthritis.”  See Claim (August 12, 2013).  Indeed, VA treatment records show current diagnoses of bilateral sciatic nerve impairment and arthritis, to include of the knees.  See, e.g., VA treatment records (May 15, 2014; May 15, 2015).
The Board finds that examination is needed to ascertain whether the Veteran’s current sciatic nerve impairment is related to his service-connected residuals of right leg fracture.  While VA examiners have opined that the Veteran’s diabetes does not cause his current sciatic nerve impairment, they have not addressed whether such is related to the Veteran’s right lower extremity disability.  In this regard, the evidence shows that the right lower extremity disability causes symptoms such as pain, limitation of motion, and leg length discrepancy.  See, e.g., VA examination (July 2017).
5. Onychomycosis 
In the decision above, the Board awarded service connection for onychomycosis, on the basis that the December 2010 VA examiner characterized that the Veteran’s current onychomycosis as a complication of his service-connected diabetes mellitus.  VA examination is needed to ascertain the current severity of the Veteran’s onychomycosis.
The matters are REMANDED for the following action:
1. Obtain the outstanding VA service treatment records and post-service VA treatment records identified in the Veteran’s August 14, 2018, brief.
2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current eye disorder.  The examiner is to specifically address whether the Veteran has had diabetic retinopathy at any time during the pendency of the appeal.  As to any current eye disorder, to include diagnosed cataracts and macular hole, the examiner is to address whether it is at least as likely as not that such is:
(a.) related to an in-service injury, event, or disease;
(b.) related to in-service herbicide agent exposure
(c.) related to contaminants in the water during service at Camp Lejeune;
(d.) caused by a service-connected disability, to include diabetes mellitus; or
(e.) aggravated beyond its natural progression by a service-connected disability.
3. Arrange for the Veteran to undergo a VA examination to evaluate the current severity of his service-connected right leg and right ankle disabilities.  The joints involved must be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.
The examiner is also to describe e all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups.  If the examination is not conducted during a flare-up or after repetition over time, the examiner is to ask the Veteran to describe the additional functional loss he suffers during flares and after repetition over time.  The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information.  Then, the examiner is to estimate the functional loss (in terms of lost range of motion) based on all the evidence of record. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
The examiner is to also address the Veteran’s reports of complete loss of ankle motion with increased pain and swelling during flare-ups.  See Brief (March 7, 2018).
The examiner is also to address whether the Veteran’s diffuse arthritis (referenced in the August 23, 2013, VA treatment record) is a manifestation of or otherwise related to his service-connected right leg fracture and ankle sprain. 
4. Schedule the Veteran for a VA examination by an appropriate clinician with respect to the sciatic nerve impairment claim.  The examiner is to opine as to whether it is at least as likely as not that the Veteran’s current sciatic nerve impairment is caused or aggravated by his service-connected residuals of right leg fracture.  Specifically, the examiner is to address whether symptoms of the residuals of right leg fracture—to include pain, limitation of motion, and leg length discrepancy—contribute, or have contributed to the etiology of the Veteran’s current sciatic nerve impairment.
5. Arrange for the Veteran to undergo a VA examination to evaluate the current severity of his service-connected onychomycosis.

 
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Joshua Castillo, Counsel