Citation Nr: 18150375 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-32 160 DATE: November 15, 2018 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. REMANDED Entitlement to service connection for hypertension (HTN), to include as secondary to service-connected diabetes mellitus is remanded. Entitlement to a rating in excess of 30 percent for residuals of lung cancer is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT At no time under consideration is the Veteran’s diabetes mellitus shown to have required regulation of activities to maintain glycemic control (in addition to insulin and restricted diet). CONCLUSION OF LAW A rating in excess of 20 percent for diabetes mellitus is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code (Code) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1969 to December 1972. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision. In February 2015, a video conference hearing was held before the undersigned; a transcript is in the record. Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diabetes mellitus is rated under Code 7913, which provides for a 20 percent rating when the diabetes requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is to be assigned when insulin, a restricted diet, and regulation of activities are required. A 60 percent rating is warranted when insulin, a restricted diet and regulation of activities are required, along 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 requires 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 rated. “Regulation of activities” is 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, 20,466 (May 7, 1996) (defining “regulation of activities,” as used by VA in Code 7913). Note 1 to Code 7913 provides that compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. When the appeal is from the initial rating assigned with an award of service connection, the severity of the disability at issue during the entire period from the initial assignment of the disability rating to the present is to be considered, and “staged” ratings may be assigned, based on facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). On September 2013 VA examination the diagnosis was diabetes mellitus type II. It was noted that diabetes mellitus was managed by restricted diet, one insulin injection per day, and oral hypoglycemic agents. There was no regulation of activities for glycemic control. The Veteran received diabetic care less than two times per month, no hospitalizations for ketoacidosis or hypoglycemic reactions were noted. No progressive unintentional weight loss or progressive loss of strength was shown. No complications were noted as attributable to diabetes mellitus. Diabetes mellitus was not shown to impact his ability to work. On August 2014 VA examination the diagnosis was diabetes mellitus type II. It was noted that diabetes mellitus was managed by restricted diet, oral hypoglycemic agents, and insulin. There was no regulation of activities for glycemic control. The Veteran received diabetic care less than two times per month, no hospitalizations for ketoacidosis or hypoglycemic reactions. No progressive unintentional weight loss or progressive loss of strength was shown. No complications were noted as attributable to diabetes mellitus. Diabetes mellitus was not shown to impact his ability to work. At a February 2015 video conference hearing the Veteran’s representative testified that the Veteran was taking triglyceride metformin twice daily with blood sugar tests four times a day. He also testified that the Veteran was involved in the MOVE exercise program. The criteria for rating diabetes are cumulative (i.e. progressive increases in ratings require the criteria for the lower ratings in addition to those additional criteria that distinguish the higher rating. Furthermore, they are stated in the conjunctive, and all criteria so stated must be met to warrant the rating. Accordingly, to warrant the next higher (40 percent) rating in this case the evidence must show that in addition to insulin and restricted diet, the Veteran’s diabetes has required regulation of activities. The record does not show that at any time under consideration the Veteran’s diabetes has required regulation (avoidance) of activities. September 2013 and August 2014 VA examinations both indicate that the Veteran’s diabetes mellitus is regulated by a restricted diet, oral hypoglycemic agents, and insulin. Neither examination found that the Veteran required regulation of activities for glycemic control. It is noted that the Veteran has been involved in the MOVE program. However, such involvement encourages activity and is not the restrictive activity for glycemic control contemplated by the requirements of a 40 percent rating. In summary, the record does not support that at any time under consideration the Veteran’s diabetes required regulation of activities to maintain glycemic control. Accordingly, the criteria for a 40 percent rating are not shown to have been met (or approximated), and a 40 percent rating was not warranted. See 38 C.F.R. § 4.7. As the criteria for progressively increasing ratings for diabetes are cumulative, it follows that the criteria for still higher ratings are also not met. The preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. REASONS FOR REMAND 1. Entitlement to service connection for HTN, to include as secondary to service-connected diabetes mellitus is remanded. The Veteran’s primary theory of entitlement to service connection for HTN is one of secondary service connection to diabetes mellitus. On September 2013 VA examination the examiner opined that it was less likely than not that the Veteran’s HTN was the proximately due to or the result of the Veteran’s service-connected diabetes mellitus. Such opinion does not adequately address whether the Veteran’s HTN was caused or aggravated by his service-connected diabetes mellitus as alleged. See 38 C.F.R. § 3.310. Accordingly, a new medical opinion is necessary. 2. Entitlement to a rating in excess of 30 percent for residuals of lung cancer is remanded. The Veteran has alleged a worsening of his service-connected residuals of lung cancer. The most recent respiratory conditions examination occurred in August 2014. In an August 2014 Form 9 the Veteran stated that his residuals of lung cancer had worsened. At the February 2015 video conference hearing the Veteran stated that he has been diagnosed with COPD, asthma, bronchitis, and emphysema. Medical treatment records show that the Veteran received ongoing treatment for his respiratory conditions. In this case, the Veteran has alleged a worsening of his condition, the most recent examination is over four years old, and treatment records indicate that the Veteran received ongoing treatment for his respiratory conditions. Accordingly, a contemporaneous examination to assess his respiratory disability is necessary. 3. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus is remanded. The record contains conflicting information related to a diagnosis of peripheral neuropathy associated with diabetes mellitus. On September 2013 VA diabetic sensory-motor peripheral neuropathy examination the examiner stated that there was no diagnosis of diabetic neuropathy. At the February 2015 video conference hearing the Veteran testified that he was prescribed medication for the tingling and burning sensation in his feet. A November 2016, podiatry treatment record notes diabetes mellitus with peripheral neuropathy. A January 2017 primary care treatment record notes that the Veteran has been prescribed Gabapentin for neuropathy. A March 2017 podiatry treatment record noted diabetes mellitus with peripheral neuropathy. Accordingly, a new examination that addresses the Veteran’s treatment records and conducts necessary diagnostic testing is necessary. 4. Entitlement to TDIU is remanded. The Veteran has raised a claim of TDIU. The Veteran is currently service connected for residuals of lung cancer (rated 30 percent), diabetes mellitus type II (rated 20 percent), and bilateral hearing loss (rated 0 percent). The Veteran’s current combined rating is 40 percent for his service-connected disabilities. The Veteran has alleged TDIU based on his service connected disabilities. Currently, the Veteran’s service-connected disabilities do not meet the schedular criteria for TDIU. Accordingly, the matter of TDIU is inextricably intertwined with the matter of the Veteran’s increased rating claim for residuals of lung cancer, and consideration of the claim must be deferred pending resolution of the increased rating claim for residuals of lung cancer. These remaining matters are REMANDED for the following: 1. The AOJ should forward the Veteran’s record to an appropriate physician to ascertain the likely etiology of the Veteran’s HTN. To this end, the consulting provider should respond to the following: (a.) Is it at least as likely as not (a 50% of better probability) that the Veteran’s HTN was caused or is being aggravated by his service connected diabetes mellitus? (b.) If it is determined that HTN was neither caused nor aggravated by the service-connected diabetes mellitus, identify the etiology for the HTN considered more likely. 2. Arrange for a pulmonary disease examination of the Veteran to assess the current severity of his residuals of lung cancer. The Veteran’s record must be reviewed by the examiner in conjunction with the examination, and the appropriate diagnostic studies (specifically pulmonary function studies) must be completed. The examiner should elicit from the Veteran information regarding the functional impairment that results from his residuals of lung cancer, and should note the treatment prescribed. All pertinent symptomatology and findings must be reported in detail. The examiner should identify the nature and severity of all manifestations of the Veteran’s residuals of lung cancer. 3. Arrange for the Veteran to be examined by a neurologist to determine the nature and etiology of any left lower extremity peripheral neuropathy. The Veteran’s entire record must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed. Based on review of the record and interview and examination of the Veteran, the examiner should provide responses to the following: (a.) Identify the likely etiology for any diagnosed left lower extremity peripheral neuropathy. Is it at least as likely as not (a 50% or better probability) that any diagnosed peripheral neuropathy was caused or aggravated by service-connected diabetes? (b.) If the opinion is to the effect that any diagnosed neuropathy is not related to service-connected diabetes mellitus, please identify the etiology considered more likely (specifically addressing medical records referring to diabetic peripheral neuropathy). The examiner must include rationale for all opinions. The rationale should include citations to supporting clinical data, and to the extent possible, supporting medical literature. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel