Citation Nr: 18148169 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 09-45 257 DATE: November 7, 2018 ORDER Entitlement to restoration of a 40 percent rating for diabetes mellitus, type 2, from May 21, 2018 is granted. Entitlement to increased initial ratings for diabetes mellitus, type 2, currently evaluated as 20 percent from July 9, 2001, and 40 percent from September 27, 2002, is denied. REMANDED Entitlement to increased initial ratings for posttraumatic stress disorder (PTSD), currently evaluated as noncompensable from April 19, 2002, 30 percent from January 8, 2003, and 50 percent from March 9, 2004 is remanded. FINDINGS OF FACT 1. A July 2018 rating decision reduced the rating for the Veteran’s diabetes mellitus, type 2, from 40 percent to 20 percent, effective May 21, 2018; this action did not result in a reduction in the Veteran’s combined rating for all service-connected disabilities (and thus adherence to due process procedures of 38 C.F.R. § 3.105(e) is not required), but it was implemented without the medical evidence showing material improvement in the Veteran’s disability under the ordinary conditions of his life. 2. From July 9, 2001 to September 27, 2002, the Veteran’s service-connected diabetes mellitus, type 2, has required oral hypoglycemic agents and a restricted diet for management; his diabetes is not shown to require insulin or regulation of activities. 3. From September 27, 2002, the Veteran’s diabetes mellitus, type 2, has required insulin, restricted diet, and regulation of activities, and he has episodes of hypoglycemic reactions and complications (nephropathy and erectile dysfunction) that are not compensable if separately evaluated; the evidence does not show that for the hypoglycemic reactions he has required hospitalization at least once annually or that he must see a care provider twice a month for diabetic management. CONCLUSIONS OF LAW 1. The reduction in rating, from 40 percent to 20 percent, effective May 21, 2018, was not proper and is void ab initio; restoration of a 40 percent disability rating for diabetes mellitus, type 2, is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.119, Diagnostic Code (Code) 7913. 2. Initial ratings in excess of 20 percent prior to September 27, 2002, and in excess of 40 percent from September 27, 2002, for diabetes mellitus, type 2, are not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.119, Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from February 1967 to October 1968. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for diabetes mellitus, type 2, and PTSD, assigning a 20 percent rating (effective July 9, 2001) and a noncompensable rating (effective April 19, 2002), respectively. Subsequent RO decisions granted higher ratings: a November 2002 Decision Review Officer Decision granted a 40 percent rating for diabetes mellitus, type 2, effective September 27, 2002; a February 2004 rating decision granted a 30 percent rating for PTSD, effective January 8, 2003; and a March 2008 Decision Review Officer Decision granted a 50 percent rating for PTSD, effective March 9, 2004. The Veteran has continued to pursue higher initial ratings. In a July 2018 rating decision, the RO reduced the rating for diabetes mellitus, type 2, from 40 percent to 20 percent, effective May 21, 2018, and the Veteran has asserted disagreement with the reduction. The Board will address the propriety of the rating reduction regarding the diabetes claim in this decision. During the pendency of the appeal, the Board twice remanded the case to the RO: in October 2015 for further development of the claim for higher initial ratings for diabetes mellitus, type 2; and in March 2018 for further development of the claims for higher initial ratings for both diabetes mellitus, type 2, and PTSD. Entitlement to increased initial ratings for diabetes mellitus, type 2, currently evaluated as 20 percent from July 9, 2001, 40 percent from September 27, 2002, and 20 percent from May 21, 2018. Rating Reduction At the outset, the Board will address the RO’s recent reduction in rating, from 40 percent to 20 percent for the diabetes mellitus, type 2, effective May 21, 2018, in a July 2018 rating decision. The Veteran has expressed disagreement with this reduction. As the Veteran was informed in an August 2018 RO letter, the rating reduction did not affect his combined schedular rating of 80 percent for all his service-connected disabilities (nor his total disability rating based on individual unemployability), and therefore his payment of benefits remains the same. Given this circumstance, the RO is not obligated to adhere to the due process requirements of 38 C.F.R. §§ 3.103(b), 3.105(e), pertaining to notice obligations and compliance with pre-determination hearing requests. Nevertheless, the Board finds that the reduction was improper and the 40 percent rating must be restored effective May 21, 2018. A rating reduction must be based on improvement in a disability that reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). A rating reduction must also be based on adequate examinations. Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that failure of examiner to review claims file rendered reduction decision void ab initio). Further, a rating reduction must have been supported by the evidence on file at the time of the reduction, although pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). Here, the 40 percent rating for diabetes mellitus had been in effect since September 27, 2002, before the RO reduced the rating to 20 percent effective May 21, 2018. Under 38 C.F.R. § 3.344(a) and (b), disability ratings which have continued for long periods of time at the same level (i.e., five years or more) may not be reduced unless certain conditions have been satisfied. For example, a reduction may not be effectuated without an examination that is as full and complete as the examination upon which the original award was based. Where diseases are subject to temporary or episodic improvement, a reduction may not be effectuated on any one examination, except where all evidence clearly warrants the conclusion that sustained improvement has been demonstrated. Further, where material improvement is shown, consideration is given to whether the evidence makes it reasonably certain that such improvement will be maintained under the ordinary conditions of life. Where any doubt remains, the rating reduction will not be effectuated (subject to a reexamination within a specified period of time). In this case, the RO based the reduction, from 40 percent to 20 percent, on one examination conducted on May 21, 2018. The RO determined that the VA examination confirmed symptoms of the criteria for a 20 percent, but not a 40 percent, rating. Essentially, the missing/absent criterion, under 38 C.F.R. § 4.119, Code 7913, was a need for the “regulation of activities” (i.e., avoidance of strenuous occupational and recreational activities) due to diabetes mellitus. In reviewing the VA examination report, the examiner provided a negative response to the inquiry of whether the Veteran required regulation of activities as part of medical management of his diabetes. While the examiner also noted that the Veteran’s claims file was reviewed, he did not provide any further explanation for his negative response, or reconcile such answer with statements made later in the report relative to the functional impact of the diabetes on the Veteran’s ability to work. Specifically, the examiner stated that during periods of low or high blood sugar, the Veteran had difficulty working, and therefore the Veteran was less able to remain alert and work effectively in an occupational setting. The Veteran’s outpatient treatment records from the time he was started on insulin in September 2002 bear this out, reflecting that his blood sugar was frequently uncontrolled over the years despite his insulin and restricted diet. In fact, in 2006 his medication was switched from insulin shots to an insulin pump to better control his diabetes, with varying degrees of success. VA outpatient records show that the Veteran was active, engaging in various activities such as bowling, golf, swimming, and performing yard work (see treatment records in 2012 and 2016), and the records do not show that his health care providers prescribed or advised him to avoid strenuous activities per se. Nevertheless, as acknowledged by the VA examiner, the Veteran’s exertions were impacted by his disease and the readings of his blood sugars. In other words, it appears that to some degree his activities were restricted. Additionally, it appears from the VA medical evidence, particularly the records that indicate the Veteran’s continuing attempts to control his blood sugar and his frequent hypoglycemic episodes over the years, that his diabetes is subject to fluctuation, thereby demonstrating episodic, or temporary, improvement. In this circumstance, reduction of his 40 percent rating cannot be accomplished on the basis of a single examination. Further, it is also the Board’s judgment that, by the time of the reduction effectuation in May 2018, the record is absent medical evidence showing material, sustained improvement of the diabetes under the ordinary conditions of his life. Neither the Veteran’s VA diabetic care providers nor the VA examiner has specifically found that the Veteran’s diabetes mellitus condition has materially improved. In fact, it would appear that it has worsened, in the sense that he now manifests complications of diabetes mellitus, namely, peripheral neuropathy of the lower extremities, for which the RO granted separate compensable ratings in the July 2018 rating decision. Finally, should there be any doubt as to whether sustained improvement has been achieved, the reduction in the disability rating is not to be effectuated. In summary, for the foregoing reasons, the RO’s rating reduction, from 40 percent to 20 percent, was improper, and the 40 percent rating must be restored effective May 21, 2018. Legal Criteria Disability evaluations are determined by application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under 38 C.F.R. § 4.119, Code 7913, a 20 percent rating is assigned when diabetes mellitus requires insulin and a restricted diet, or oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus that requires insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for 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 evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and regulation of activities and involving 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. The notes to the Code provide, in part, that compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation, and that noncompensable complications are considered part of the diabetic process under the Code 7913. “Regulation of activities” under Code 7913 has been defined as a situation in which the veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996). Analysis The Veteran’s service-connected diabetes mellitus, type 2, is evaluated under 38 C.F.R. § 4.119, Code 7913, as 20 percent disabling from the effective date of service connection on July 9, 2001 to September 26, 2002, and as 40 percent disabling ever since then (in consideration of the rating restoration, as decided herein). Based on a review of the record, the Board finds that the preponderance of the evidence is against higher initial ratings. Before addressing the merits of the claim, the Board recognizes that the Veteran has asserted that he has type 1, not type 2, diabetes mellitus. Indeed, VA treatment records in recent years and the VA examiner in May 2018 cited to a diagnosis of diabetes mellitus, type 1. For purposes of evaluating his service-connected diabetes mellitus, the type of diabetes is not consequential; Code 7913 applies to both types. Additionally, service connection has been in effect for diabetes mellitus, type 2, for more than 10 years, and as such it cannot be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the individual concerned did not have the requisite service or character of discharge. See 38 C.F.R. § 3.957 (providing protection where service connection for a disability has been in effect for 10 or more years). Here, neither condition is met. Service connection was awarded in September 2002 for diabetes mellitus, type 2, because the medical evidence at that time and for many years thereafter reflected that the Veteran had a diagnosis of type 2 diabetes mellitus. In other words, there was no fraud perpetrated and the record shows that the Veteran is properly a veteran entitled to disability compensation benefits. It is not clear why there was a change in the type of diabetes, but the Veteran will continue to receive compensation benefits based on the disability for which service connection was established. The pertinent evidence in this case includes VA outpatient treatment records dating back to 2001 and an examination report of May 2018. For the period before September 27, 2002, the records show that that the Veteran required daily medication - oral hypoglycemic agents (glyburide/metformin HCL) - for management of his diabetes mellitus. Further, there is an indication that he also required a restricted diet. For example, a September 20, 2002 treatment record to assess his nutrition indicates that he had been following his diet guidelines but that his blood sugar “runs all over.” Therefore, he clearly met the criteria for a 20 percent rating under Code 7913. However, there is no evidence to show that the Veteran was also dependent on insulin for management of diabetes (nor has the Veteran ever stated that he required insulin) during this period, and that “regulation of activities” was part of his medical management of diabetes mellitus; both of these are required to satisfy the criteria for a 40 percent rating under Code 7913 (because the requirements are in the conjunctive). Even if it could be argued that his activities were regulated, he would still need to show a requirement of insulin for a higher initial rating. Therefore, prior to September 27, 2002, the Veteran does not meet the criteria for a 40 percent rating for diabetes mellitus. Beginning on September 27, 2002, the Veteran’s diabetes mellitus is evaluated as 40 percent disabling, because the record shows that he was started on insulin on that date and has required the medication ever since then. He also continued to have a restricted diet, and it appears (while not explicitly stated) that his activities were at least somewhat regulated, as mentioned in the section herein above relative to the rating reduction. To satisfy the criteria for a higher initial rating for this period, the evidence must also show that he experiences episodes of ketoacidosis or hypoglycemic reactions that require either one or two hospitalizations annually or twice a month visits to a diabetic care provider, together with complications that would not be compensable if separately evaluated. Regarding complications, the Veteran’s diabetes mellitus, type 2, disability has been rated 40 percent with nephropathy, which itself is not compensable, ever since September 27, 2002 (and rated 20 percent prior to that date). VA outpatient records in 2017 and 2018, for example, reflect a diagnosis of chronic kidney disease, but it is noted as stable, and on a review of systems the Veteran has denied any genitourinary problems such as hesitancy, frequency, nocturia, or hematuria. No urinary complaints were documented on treatment records in November 2007, November 2015, and December 2016, or on a VA genitourinary examination in August 2008. Frequent urinalyses over the years have disclosed microalbumin/creatinine was, with few exceptions such as on occasion in 2008, within the reference range of normal, and care providers did not describe any decrease in renal function. A May 2018 VA genitourinary examination report indicates that the Veteran had voiding dysfunction (increased urinary frequency), but the examiner attributed it to a suspected benign prostatic hypertrophy. For a compensable rating, there would have to be one of the following: long-term drug therapy for urinary tract infection, stricture disease requiring periodic dilatation every 2-3 months, urinary frequency (daytime voiding interval between 2 and 3 hours or nighttime voiding at least twice) related to nephropathy, voiding dysfunction with a requirement of absorbent materials related to nephropathy, or renal dysfunction (manifested by albumin constant or recurring with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling under Code 7101). The Veteran takes medication for high blood pressure, which is typically controlled; however, when it was noted on occasion to be uncontrolled (such as in March 2016, or in June 2007 when he had not taken his medication), the medical evidence does not show his diastolic pressure is (or has been historically) predominantly 100 or more or that systolic pressure is predominantly 160 or more, to satisfy the criteria for a 10 percent rating under Code 7101. Therefore, after consideration of all the evidence, the Veteran’s nephropathy would not be compensable under applicable criteria for evaluating kidney disease. See 38 C.F.R. §§ 4.115a, 4.115b, Codes 7500-7542. As to other complications of diabetes mellitus, a July 2018 rating decision granted service connection for erectile dysfunction secondary to diabetes mellitus, assigning a noncompensable rating effective from April 2008 (although the Veteran was awarded special monthly compensation under 38 U.S.C. § 1114(k) based on loss of use of a creative organ). Therefore, as to nephropathy and erectile dysfunction, the Veteran is shown to have the necessary noncompensable complications for a higher rating. Moreover, in considering the criteria for a 60 percent rating after September 27, 2002, VA outpatient records are replete with reports of the Veteran’s difficulty controlling his blood sugar, leading to hypoglycemic reactions (he was counseled for “hypoglycemia unawareness”). However, the medical records do not show that he has been hospitalized for such episodes or that his visits to a diabetic care provider are more frequent than once per month. Treatment records reflect that he typically followed up with his care provider every two to three months. The VA examination report of May 2018 likewise indicates no need for hospitalization and states that the frequency for visiting his care provider was less than two times per month. Given the foregoing, the Board finds that from September 27, 2002, the RO properly evaluated the Veteran’s diabetes mellitus as 40 percent and no higher. As for diabetic complications, it was previously noted that the Veteran has erectile dysfunction and nephropathy, which are noncompensable. Notably, the July 2018 rating decision also granted service connection for diabetic neuropathy of the right and left lower extremities, each separately evaluated as 20 percent disabling, effective March 28, 2017. To date there has been no disagreement with that award. As this appeal is from the initial rating assigned, and the Board has taken into consideration “staged ratings” for various periods of time since service connection was established from July 9, 2001. Fenderson v. West, 12 Vet. App. 119 (1999). However, the Board finds that the preponderance of the evidence is against the claim for an initial rating in excess of 20 percent before September 27, 2002, and an initial rating in excess of 40 percent from that date, for the Veteran’s diabetes mellitus. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to increased initial ratings for PTSD, currently evaluated as noncompensable from April 19, 2002, 30 percent from January 8, 2003, and 50 percent from March 9, 2004 is remanded. To evaluate the Veteran’s PTSD, the Board must consider pertinent records from VA and the Social Security Administration (SSA) in the file. VA outpatient reports indicate that the Veteran has been receiving mental health treatment on an individual and group basis over the years for his PTSD, to include cognitive behavioral therapy in early 2018. Over the lengthy period of the appeal, it is notable that he has undergone two VA examinations to evaluate the nature and severity of his PTSD – in September 2002 and in September 2003. Since those examinations, the evidence suggests that the Veteran’s PTSD symptomatology may have worsened. Additionally, he was awarded SSA disability benefits based on severe impairments relative to four different disabilities, including PTSD. To properly evaluate his PTSD, the Veteran should be provided an opportunity to report for a VA examination to ascertain the severity and manifestations of PTSD at present and retrospectively if medically possible. The matter is REMANDED for the following action: 1. Obtain the Veteran’s updated (since August 1, 2018) VA records of treatment for PTSD. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and severity of his service-connected PTSD, both at present and retrospectively since September 2003 (where medically possible). The claims file must be made available to the examiner for review in conjunction with the examination. (a). In regard to the period at present, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s PTSD under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of all current symptom manifestations. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to PTSD alone. (b). In regard to the period from September 2003 (when the Veteran last underwent a VA examination) to the present, the examiner should, based on a review of the record and interview of the Veteran, attempt to provide an assessment of the symptom manifestations of his PTSD and their severity, frequency, and duration. The examiner should attempt to describe the social and occupational impairment due to PTSD during this period, and indicate if there were any definite periods of exacerbation or remission of the PTSD and associated symptoms (and if so, what they were). The examiner must provide rationale for all opinions, and   if any opinion sought cannot be offered, explain why that is so. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel