Citation Nr: 18145150 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 13-16 756 DATE: October 26, 2018 ORDER Entitlement to an increased disability rating in excess of 20 percent for the service-connected diabetes mellitus with diabetic nephropathy, hypertension and erectile dysfunction is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s diabetes mellitus required insulin and a restricted diet, but did not otherwise require avoidance of strenuous occupational and recreational activities to control his diabetes. 2. Throughout the period on appeal, the Veteran’s diabetic nephropathy has not been manifested by constant or recurring albumin with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling. 3. Throughout the period on appeal, the evidence of record indicates that the Veteran’s hypertension has been manifested by a systolic pressure predominantly less than 160 and a diastolic pressure predominantly less than 100, with no history of a diastolic pressure predominantly more than 100 requiring continuous medication for control. 4. Throughout the entire period on appeal, the evidence of record indicates that the Veteran’s erectile dysfunction is not manifested by penile deformity. CONCLUSIONS OF LAW 1. During the entire period on appeal, the criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2018). 2. During the entire period on appeal, the criteria for a separate compensable disability for diabetic nephropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7541 (2018). 3. During the entire period on appeal, the criteria for a separate compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2018). 4. During the entire period on appeal, the criteria for a separate compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to January 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in October 2017 for further development, which has been completed. At that time, service connection for posttraumatic stress disorder (PTSD) was also remanded. However, in a July 2018 rating decision, service connection for PTSD was granted. Accordingly, the appeal for service connection for PTSD is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Entitlement to an increased disability rating for the service-connected diabetes mellitus, type II, associated with herbicide exposure, to include non-compensable diabetic nephropathy, erectile dysfunction, and hypertension Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Service connection for diabetes mellitus include non-compensable diabetic nephropathy was originally established in an August 2010 rating decision which assigned a 20 percent disability rating, effective from December 23, 2009, pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. The disability was recharacterized on several occasions, first in a June 2011 rating decision that granted service connection for hypertension, and again in a November 2012 rating decision which granted service connection for erectile dysfunction, both of which were determined to be noncompensable and rated in conjunction with the diabetes mellitus. The November 2012 rating decision also granted special monthly compensation for loss of use of a creative organ, effective March 22, 2012. The Veteran initiated the present claim for an increased disability rating in March 2012. The Board notes that the Veteran is already in receipt of separate compensable ratings for diabetic peripheral neuropathy of the bilateral upper and lower extremities. Thus, symptomology from this condition cannot be considered when assigning an evaluation for the Veteran’s diabetes. 38 C.F.R. § 4.14 (2018) (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). The Veteran’s service-connected diabetes has been rated as 20 percent disabling. In order for a higher rating to be warranted, the evidence of record must demonstrate, at a minimum, that the Veteran’s diabetes requires insulin, restricted diet, and regulation of activities. See 38 C.F.R. § 4.119, Diagnostic Code 7913. The criteria for rating diabetes are conjunctive and successive; each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013). “Regulation of activities” is required for all ratings in excess of 20 percent, and is defined by Diagnostic Code 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). Separate ratings are assigned for any compensable complication of the Veteran’s service-connected diabetes unless they are part of the criteria used to support a total evaluation. All noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). A review of the record shows that during the period on appeal, although the Veteran’s diabetes required insulin and a restricted diet, regulation of activities was not medically necessary to control his diabetes such that a rating in excess of 20 percent is warranted. See Camacho, 21 Vet. App at 366-67. The Veteran underwent a VA diabetes mellitus examination in September 2012. He reported that his diabetes had worsened, stated that his blood sugar has been difficult to control, and he has required several medication adjustments. The examiner noted the Veteran did not have any restriction of activities on account of the diabetes and in fact, he reported that he exercised twice a week, walking approximately 30 minutes. Treatment consisted of oral hypoglycemic agents, but not insulin. The Veteran reported visiting his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than twice per month. He denied hospitalization or emergency department visits due to uncontrolled diabetes mellitus. He denied episodes of hypoglycemia and the examiner noted there had been no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations in the past year. There were no effects on occupational functioning and daily activities. The Veteran underwent a VA diabetes mellitus examination in December 2017. The examiner noted the Veteran did not require restriction of activities to manage his diabetes. Treatment consisted of restricted diet, oral hypoglycemic agents, and insulin required with more than one injection per day. The examiner noted the Veteran visited his diabetic care provider less than twice per month for episodes of ketoacidosis or hypoglycemic. The examiner noted the Veteran reported one episode of ketoacidosis requiring hospitalization in the past year, but no episodes of hypoglycemic reactions requiring hospitalization in the past year. The examiner remarked that the Veteran’s condition had worsened. The examiner stated that based on the Veteran’s body habitus and his poorly controlled diabetes and his increase in symptoms due to his diabetic peripheral neuropathy, his functional impact is rated poor at this time. The Veteran’s VA treatment records show that he had an escalation in his diabetic needs and was prescribed daily insulin injections as early as August 2013. In November 2015, the Veteran was noted with uncontrollable diabetes mellitus, using insulin, and dose adjustments with possibility of hypoglycemia. Ongoing treatment notes are negative for instructions to avoid strenuous occupational and recreational activities because of diabetes. On the contrary, most recently as of April 2017, the Veteran has consistently been encouraged to undertake regular exercise and maintain a healthy diet even when his diabetes was complicated by his peripheral neuropathy. While the Veteran has reported that his activities are restricted, he stated that this was due to his peripheral neuropathy, not as a means to control his diabetes. As noted above, the Veteran is separately rated for his peripheral neuropathy, and symptoms associated with the neuropathy cannot be considered in assigning the evaluation for his diabetes. 38 C.F.R. § 4.14. Although the Veteran reported in his May 2013 statement that he was hospitalized at the San Carlos Hospital in April 2013 due to his diabetes, the Veteran failed to respond when requested to sign and return authorization and release in order to obtain those records. Accordingly, record of the Veteran’s hospitalization could not be corroborated. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). In sum, the record shows that the Veteran’s diabetes has been treated with a restricted diet, insulin, but not regulation of his activities as part of his diabetes treatment during the entire period on appeal. As the criteria for all higher disability ratings require regulation of activities, and such is not shown, a higher rating is not warranted. See Middleton, 727 F.3d at 1172. Accordingly, the Board finds that the preponderance of the evidence is against a claim for a higher rating during the entire period on appeal. As will be discussed below, although the Veteran’s diabetic nephropathy, hypertension and erectile dysfunction have been associated with his service-connected diabetes, they do not warrant separate ratings as the disabilities do not rise to a compensable level. A. Entitlement to a separate compensable rating for diabetic nephropathy Renal dysfunction is rated at 30 percent disabling when there is constant or recurring albumin with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7101. A 60 percent rating is warranted when there is constant albuminuria with some edema; or definite decrease in kidney function; or hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating requires persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or blood urea nitrogen more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a, Renal Dysfunction. On the September 2012 VA nephrology examination, the examiner noted that the Veteran took Losartan daily for his renal dysfunction. The examiner also noted that the renal dysfunction did not require regular dialysis, that the Veteran had no signs or symptoms due to renal dysfunction, that he did not have urolithiasis, and that he did not have a history of recurrent symptomatic urinary tract or kidney infections. Laboratory test results were noted for BUN at 19.3, creatine at 1.26, and EGFR at 57. Urinalysis revealed few hyaline casts, no granular casts, no red blood cells, and the spot urine microalbumin/creatine ratio was 86. The examiner concluded that the Veteran’s renal dysfunction did not have any impact on the Veteran’s ability to work. The December 2017 VA examiner noted that the Veteran took blood pressure medication that was renal protective for his renal dysfunction, that he did not require dialysis, did not have symptomatic renal tubular disorder, did not have frequent attacks of colic with infection, and did not have a history of recurrent urinary tract or kidney infections. However, the examiner noted constant proteinuria (albuminuria) due to renal dysfunction. The examiner also noted that the Veteran has kidney calculi (urolithiasis), for which he has had invasive or non-invasive treatment for recurrent stone formation in the kidney on average of zero to one time per year, most recently in 2012; although, the Veteran could not recall the facility at which he underwent the procedure. The examiner reported that the Veteran did not have any signs or symptoms due to urolithiasis. Laboratory test results were noted to be normal for BUN, creatine, and EGFR. However, the examiner noted that proteinuria (albumin) and spot urine for protein/creatine ration were abnormal. The examiner concluded that the Veteran’s renal dysfunction did not have any impact on the Veteran’s ability to work. A review of VA and private treatment records does not reveal renal dysfunction complications, signs, or symptoms different from those identified by the September 2012 and December 2017 examiners. The Board finds that the balance of the record is consistent with and supportive of the findings and conclusions of the 2012 and 2017 examiners. After reviewing the record, the Board finds that for the entire appeal period the preponderance of the evidence is against the Veteran meeting the criteria for a compensable rating for renal dysfunction. The record does not support the presence of constant or recurring albumin with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7101. In this regard, a 10 percent rating for hypertension requires diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. As discussed below, the medical evidence does not reflect diastolic pressure elevated to that level. Accordingly, a separate compensable rating is not warranted. B. Entitlement to a separate compensable rating for hypertension Hypertension is evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent rating is warranted for hypertensive vascular disease with diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A maximum 60 percent rating is warranted for diastolic pressure predominantly 130 or more. Id. A review of the record reflects that the Veteran does not have diastolic blood pressure predominantly of 100 or more; systolic pressure predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A September 2012 VA examination shows that the Veteran’s blood pressure was 123/80 on September 24,2012, 114/63 on July 26, 2012, and 124/79 on April 17, 2012. The examiner noted that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. A December 2017 VA examination shows that the Veteran’s blood pressure was 122/78, 124/80, and 124/79. The examiner noted that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. VA treatment records reflect numerous blood pressure readings taken from June 2011 to May 2017. The diastolic pressure readings ranged from 58 to 89 and systolic pressure readings from 104 to 138. The reading with the highest diastolic pressure was in February 2015 with a reading of 128/89. The reading with the highest systolic reading was in July 2015 with a reading of 138/74. Upon review of the record, the evidence does not reflect that the Veteran has a diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more in order to warrant a 10 percent evaluation. While the record does establish that the Veteran has been prescribed medication for his high blood pressure, as noted above, the record does not establish a history of diastolic pressure predominantly 100 or more. Both conditions must be met to warrant a10 percent evaluation on the basis of continuous medication. Accordingly, a separate compensable rating for hypertension is not warranted. C. Entitlement to a separate compensable rating for erectile dysfunction The Veteran’s erectile dysfunction has been rated as noncompensable under 38 C.F.R. § 4.115b, Diagnostic Code 7522. However, he has been in receipt of special monthly compensation for loss of use of a creative organ since 2012. Under Diagnostic Code 7522, a 20 percent rating is assigned for deformity of the penis with loss of erectile power. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2018). The Board finds that a compensable rating is not warranted at any period during the appeal period for the Veteran’s service-connected erectile dysfunction because there is no competent and credible evidence of deformity of the penis. In this regard, on examination in September 2012, physical examination of the penis was normal; there was no evidence of deviation or deformity. The December 2017 VA examination report reflects that the Veteran declined genital examination but reported normal anatomy with no penile deformity or abnormality. The Veteran reported not being able to achieve erections sufficient for penetration and ejaculation with medication. Thus, while the evidence does establish erectile dysfunction, the record does not reflect that the Veteran has penile deformity, nor does the Veteran contend such. Therefore, based on the evidence of record, the Board finds that a compensable rating is not warranted for the Veteran’s service-connected erectile dysfunction. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Medina, Associate Counsel