Citation Nr: 18149779 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-41 180 DATE: November 13, 2018 ORDER Entitlement to an initial rating higher than 20 percent for diabetes mellitus type II (diabetes mellitus) is denied. REMANDED Entitlement to service connection for vision loss is remanded. FINDING OF FACT The Veteran’s diabetes mellitus requires insulin and restricted diet, but not regulation of activities. CONCLUSION OF LAW The criteria for an initial rating higher than 20 percent for diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and May 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the March 2014 rating decision, the RO denied entitlement to service connection for vision loss. In the May 2014 rating decision, the RO granted service connection for diabetes mellitus and assigned a 10 percent rating, effective the March 21, 2014 date of claim. The Veteran timely disagreed with initial rating assigned. In a July 2016 rating decision, a Decision Review Officer (DRO) increased the assigned rating for diabetes mellitus to 20 percent, also effective March 25, 2014. The Veteran has not expressed satisfaction with the increased disability rating; this issue thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). In an October 2017 rating decision, the RO issued a rating decision that granted service connection for peripheral neuropathy of the left and right lower extremities and assigned separate 10 percent ratings. In November 2011, the Veteran submitted an increased rating claim for peripheral neuropathy. In a March 2018 rating decision, the RO increased the Veteran’s ratings for peripheral neuropathy of the left and right sciatic nerves to 20 percent and granted service connection for peripheral neuropathy of the left and right femoral nerves and assigned initial 20 percent ratings. As the Veteran has not appealed either the evaluation or effective date assigned to these disabilities, these matters are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Entitlement to an initial rating higher than 20 percent for diabetes mellitus. The Veteran’s diabetes mellitus is rated 20 percent under 38 C.F.R. § 4.119, DC 7913, the criteria applicable to diabetes mellitus. Effective December 10, 2017, VA revised the criteria for rating disabilities of the endocrine system (including diabetes mellitus). 82 Fed. Reg. 50806 (Nov. 2, 2017). These changes do not, however, effect the analysis in this case because both the former and revised versions of the regulation require regulation of activities for a 40 percent rating. Under DC 7913, a 20 percent rating is warranted for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes 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 requiring more than one daily injection of insulin, restricted diet, and regulation of 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. Within the criteria for a 100 percent rating, “regulation of activities” is defined as “avoidance of strenuous occupational and recreational activities.” This definition also applies to the “regulation of activities” criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction “and” is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). Thus, 38 C.F.R. § 4.7 is not applicable to DCs that apply successive rating criteria where “the evaluation for each higher disability rating include[s] the criteria of each lower disability rating, such that if a component [i]s not met at any one level, the veteran could only be rated at the level that did not require the missing component.” Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Where that is the case, to permit a rating at the higher percentage, “where only two out of the three criteria were met, would eviscerate the need for [a lower rating percentage] since the symptoms established for either rating might be the same.” Id., citing Camacho, 21 Vet. App. at 366-67). For the following reasons, entitlement to an initial rating higher than 20 percent for diabetes mellitus is not warranted. The evidence reflects that the Veteran’s diabetes required oral hypoglycemic agent and a restricted diet. For instance, in a March 2018 VA examination report, the VA treatment provider noted that the Veteran’s diabetes required the use of insulin, restricted diet, and oral hypoglycemic agents to control his blood sugar. See also private treatment record ( March 2014 ) (showing that restricted diet and regular exercise is needed to control the Veteran’s diabetes mellitus). The March 2018 VA diabetes examination report also states that the Veteran’s diabetes mellitus does not require regulation of activities and has not resulted in episodes hypoglycemia or ketoacidosis. Additionally, treatment records dated throughout the pendency of the appeal that the Veteran’s diabetes mellitus has not required regulation of activity. Rather, treatment records consistently show that the Veteran has been encouraged to exercise and engage in physical activity. See private treatment record ( March 2014 ) and VA treatment records (May 2014; February 2015; May 2016). Based on the foregoing evidence, the symptoms associated with the Veteran’s service-connected diabetes mellitus required treatment as specifically described in the criteria for a 20 percent disability rating. The higher ratings all require regulation of activities; however, the above evidence reflects that there is no medical evidence of “avoidance of strenuous occupational and recreational activities.” See Camacho, 21 Vet. App. at 363. Additionally, there is no argument or evidence of ketoacidosis or hypoglycemic reactions requiring hospitalizations or visits to a diabetic care provider twice a month. Aside from the service-connected peripheral neuropathy of the lower extremities, the Veteran does not contend and the evidence does not suggest that he has any complications of diabetes mellitus that have not been service-connected. In fact, during periodic eye examinations, clinicians consistently determined that the Veteran did not suffer diabetic retinopathy. See VA treatment records (October 2014; January 2016; January 2017; January 2018). Additionally, the March 2018 VA diabetes examination report confirms that the Veteran’s diabetes mellitus has not resulted in any complications other than his service-connected peripheral neuropathy. Accordingly, there is no basis for awarding a separate disability rating for the Veteran’s a complication of diabetes mellitus. Moreover, the evidence did not show that the Veteran had disabilities affecting other body systems as a result of his service-connected diabetes mellitus. For the foregoing reasons, the preponderance of the evidence is against an initial higher rating than 20 percent for diabetes mellitus. The benefit of the doubt doctrine is thus not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Board has considered the Veteran’s initial rating claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In addition, a request for an entitlement to a total disability rating based on individual unemployability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). If the claimant or the evidence of record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. In this case, the Veteran has not contended and the evidence does not show that he is unable to maintain or obtain gainful employment due to his service-connected diabetes mellitus. Therefore, the issue of entitlement to a TDIU has not been argued by the Veteran or reasonably raised by the evidence of record. REASONS FOR REMAND Entitlement to service connection for vision loss is remanded. The Veteran submitted a May 2014 formal notice of disagreement (NOD) (VA Form 21-0958) with the March 2014 rating decision that denied entitlement to service connection for vision loss. The Veteran wrote “vision loss” as the specific issue of disagreement. Although the Veteran did not check a box indicating which aspect of the decision he disagreed with, he wrote “Any” in the space provided for percentage evaluation sought. This reflects that he sought to appeal the denial of service connection. Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (“VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement”) (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)). In November 2014, the Veteran submitted a service connection claim for vision loss. In May 2015, the RO denied the Veteran’s claim of entitlement to service connection for vision loss on the basis that new and material evidence had not been submitted. However, to date, the RO has not addressed the Veteran’s May 2014 NOD or issued a statement of the case (SOC) on the matter. Consequently, the subsequent denial did not affect the status of the prior NOD. See Myers v. Principi, 16 Vet. App. 228 (2002) (where a veteran had filed a timely appeal from a prior RO decision and VA failed to recognize the appeal, neither the prior RO decision nor its subsequent denial of reopening of the claim becomes final). See also Jones v. Shinseki, 23 Vet. App. 122, 125 (2009), aff’d, 619 F.3d 1368 (Fed. Cir. 2010) (“[O]nce an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board. Only a subsequent Board decision can resolve an appeal that was initiated but not completed”) (quoting Juarez v. Peake, 21 Vet. App. 537, 543 (2008)). Accordingly, a remand for issuance of a SOC on the issue of service connection for vision loss is warranted. See 38 C.F.R. § 19.9 (c), codifying Manlincon v. West, 12 Vet. App. 238 (1999) (in cases before the Board in which a claimant has timely filed a NOD with a determination of the agency of original jurisdiction (AOJ) on a claim, but the record reflects that the AOJ has not subsequently granted the claim in full and has not furnished the claimant with a SOC, the Board shall remand the claim to the AOJ with instructions to prepare and issue a SOC). The matter is REMANDED for the following action: Issue a SOC addressing the issue of entitlement to service connection for vision loss. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel