Citation Nr: 18147707 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 15-44 617 DATE: November 5, 2018 ORDER Entitlement to service connection for hypertension is granted. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II (DM), with dry eye syndrome and cataracts, is denied. Whether the Veteran’s combined disability rating was properly calculated under 38 C.F.R. § 4.25 is denied. REMANDED Entitlement to service connection for dry mouth is remanded. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran’s hypertension is aggravated by his service-connected diabetes mellitus. 2. The Veteran’s DM requires oral medication, restricted diet, and regulation of activities for control, and does not require one or more daily injections of insulin. 3. During the appeal period, the Regional Office (RO) properly calculated the Veteran’s combined disability rating at 90 percent from August 3, 2012; 80 percent from June 8, 2012; 60 percent from November 1, 2009; 100 percent from November 15, 2007; and 10 percent from December 1, 1971, under the Combined Ratings Table. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension as secondary to the Veteran’s service-connected DM have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.310 (2018). 2. The criteria for a rating in excess of 20 percent for DM have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2018). 3. The Veteran’s overall disability ratings are properly calculated using the Combined Ratings Table. 38 U.S.C. §§ 1155, 1157; 38 C.F.R. § 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1970 to November 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Muskogee, Oklahoma. The issue of service connection for bilateral lower extremity peripheral neuropathy as secondary to the service-connected DM was raised in a July 2018 appellant’s brief and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Service Connection Hypertension The Veteran has asserted that his diagnosed hypertension is caused or permanently aggravated by his service-connected disabilities, to specifically include DM. In June 2015, the Veteran was afforded a VA examination. The examiner opined that the Veteran’s hypertension was at least as likely as not permanently aggravated by his service-connected DM. The Board finds that the June 2015 VA examination report is adequate because the examiner examined the Veteran, reviewed the medical history of the Veteran and discussed relevant evidence, considered the contentions of the Veteran, and provided a supporting rationale for the conclusion reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Moreover, there are no medical opinions against the claim. Therefore, the Board finds that preponderance of the evidence is for the claim and entitlement to service connection for hypertension is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Claim DM The Veteran has asserted that he should have a higher rating for his DM, as his symptoms are worse than those contemplated by the currently assigned rating. At the outset, the Board acknowledges that the Veteran is in receipt of separate, compensable ratings for, in pertinent part, urinary incontinence, prostatitis with urethral discharge, bowel dysfunction with fecal leakage, erectile dysfunction, bilateral lower extremity stasis, and bilateral lower extremity peripheral vascular disease. These disabilities and the ratings are not currently before the Board on appeal. Therefore, those ratings will not be discussed in this decision. The Veteran's dry eye syndrome and cataracts are not compensable, and are included in the evaluation for his DM. At a July 2013 VA examination, the Veteran reported that treatment for his DM consisted of a managed diet, prescription medication, and exercise. The Veteran indicated that the visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than 2 times per month, and that his DM did not require hospitalization within the prior 12 months. On examination, there was no evidence that the Veteran lost weight or muscle due to DM. With regard to functional impact, the examiner reported that the Veteran, an attorney, had difficulty attending court as he required constant bathroom breaks. The examiner reported that the Veteran’s DM was productive of dry mouth, cramping, and fatigue. The examiner indicated that the Veteran’s DM also affected his vision, in that it caused a strobe light effect. A June 2015 VA examination report indicates that the Veteran’s DM had been treated with oral hypoglycemic agents and a restricted diet. The examiner reported that the Veteran’s DM also required regulation of activities in that the Veteran had to be cautious as to avoid having low blood sugar. The Veteran reported no episodes of ketoacidosis or hypoglycemic reactions, and no incidents requiring hospitalization in the prior year. With regard to functional impact, the examiner reported that the Veteran’s DM would result in hypoglycemia when overexerted. With specific regard to the Veteran’s dry eye symptomatology, an August 2012 private treatment note indicates that the Veteran had begun using anti-inflammatory medication to treat his dry eye symptoms, and it had resulted in near complete relief of his symptoms. A July 2013 private treatment note from Dr. C.W. indicates that the Veteran’s eye conditions had improved since he began using topical lubricants in 2012. A September 2013 VA examination shows that the Veteran's symptoms were severe redness and watery eyes in a dark movie theater. Moreover, a June 2014 private treatment note indicates that the Veteran’s retinal health had been good and that there were no signs of retinopathy. As for the Veteran's cataract symptomatology, a June 2015 VA examination shows that the Veteran had corrected vision of 20/40 in his left and right eyes for both near and far vision. A review of the record shows that the Veteran also receives treatment for various disabilities at the VA Medical Center, to include DM. However, a review of VA Medical Center treatment notes of record does not show any indication that the Veteran has DM symptoms that are worse than those already reported by the VA examiners. Thus, the Board finds that a disability rating in excess of 20 percent is not warranted for the Veteran’s DM at any time during the period on appeal. In this regard, the Veteran may only be awarded an increased rating upon evidence that his diabetes requires treatment with insulin, a restricted diet, and regulation of activities. Each of these criteria must be met for the Veteran to be awarded an increased rating. See Camacho v. Nicholson, 21 Vet. App. 360 (2007). However, the evidence of record establishes that the Veteran’s DM requires use of prescription medication, regulation of activity, and a restricted diet, and does not require one or more daily injections of insulin. To that end, the July 2013 and June 2015 VA examination reports indicate that the Veteran’s DM was treated through use of prescription medication, and not insulin injections, which is contemplated by the currently assigned rating. Additionally, there is no evidence that the Veteran experienced diabetic retinopathy or incapacitating episodes as a result of his dry eye symptoms, or that his cataracts result in visual acuity warranting a compensable rating. As the manifestations of the Veteran’s dry eye symptoms and cataracts are noncompensable under Diagnostic Code 6006 and Diagnostic Code 6027, respectively, they are considered part of the diabetic process and are contemplated by the currently assigned 20 percent schedular rating. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the Board finds that the Veteran’s disability picture most closely approximates the criteria associated with a 20 percent rating, as currently assigned. 38 C.F.R. § 4.71a, Diagnostic Code 7913 (2018). Entitlement to a Higher Overall Combined Disability Rating In an October 2013 rating decision, the RO determined that the Veteran’s combined disability rating was 90 percent, effective from August 3, 2012. In October 2014, the Veteran filed a notice of disagreement (NOD) with respect to the manner in which his combined rating was calculated. In accordance with the applicable VA regulations, the Veteran’s service-connected disabilities are evaluated according to the Rating Schedule and the evaluations are then combined under the Combined Ratings Table set forth at 38 C.F.R. § 4.25. See 38 U.S.C. §§ 1155 and 1157 (2012). The law directs the Secretary to provide for ratings based on the combination of evaluations for veterans suffering from multiple service-connected disabilities. See 38 U.S.C. § 1157. The Secretary has prescribed a table for combined ratings in 38 C.F.R. § 4.25. Combined ratings result from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. For example, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from that 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled, as shown in Table 1 opposite 60 percent and under 30 percent. Using the methodology discussed in 38 C.F.R. § 4.25(a) and (b), and applying the Table 1 - Combined Ratings Table, the Board finds that the RO properly calculated the Veteran’s combined disability rating at 90 percent from August 3, 2012; 80 percent from June 8, 2012; 60 percent from November 1, 2009; 100 percent from November 15, 2007; and 10 percent from December 1, 1971. When the Veteran originally challenged his overall disability rating in his October 2014 NOD, he essentially asserted that it should be calculated by simply adding together the ratings of all his service-connected disabilities. As noted above, VA is directed by law to provide for evaluations based on the combination of ratings for multiple service-connected disabilities by use of the Combined Ratings Table at 38 C.F.R. § 4.25. The Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs, and is without authority to revise them. 38 C.F.R. § 19.5. Therefore, the Board does not have any authority to calculate the Veteran’s overall disability rating utilizing any method other than the Combined Ratings Table and 38 C.F.R. § 4.25. As a final matter, the Board notes that the Veteran has not objected to the specific calculations used by VA in determining his overall disability ratings based on the Combined Ratings Table. Rather, his disagreement with this matter is limited to the general use of the Combined Ratings Table. At this time, however, the Board finds that the claim for a higher overall rating on a basis other than use of the Combined Rating Table has no legal merit and is denied. REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. Service Connection- Dry Mouth The Veteran asserts that he has dry mouth that is related to his service-connected disabilities, to include medication used to treat his service-connected disabilities. Private treatment notes from April 2014, July 2014 and Septemberq 2014 indicate that the Veteran experienced dry mouth. Additionally, the September 2014 private treatment note reveals that the Veteran was prescribed Biotene to treat his dry mouth. To date, no VA medical opinion has been obtained with regard to the Veteran’s dry mouth. Therefore, the Board finds the Veteran should be afforded a VA examination to determine the nature and etiology of his dry mouth. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination by an examiner of appropriate expertise to determine the nature and etiology of any currently present dry mouth. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to the following: a) Whether it is at least as likely as not (50 percent probability or more) that dry mouth had its onset during service, or is otherwise related to a disease or injury in service? b) Whether it is at least as likely as not that dry mouth was caused by any of the service-connected disabilities, to include the medications taken for such? c) Whether it is at least as likely as not that the dry mouth was aggravated by any of the Veteran’s service-connected disabilities to include the medications taken for such? The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the remaining claims, issue a supplemental statement of the case, and return the case to the Board. L. Barstow Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel