Citation Nr: 18151775 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-44 979 DATE: November 20, 2018 ORDER The claim of entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction (ED) is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s diabetes mellitus has required a restricted diet and either oral hypoglycemic agent or insulin, but has not required regulation of activities; although the Veteran has loss of penile power in this case, his ED is not the result of a penile deformity and his penis is shown to be normal. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus, type II, with ED, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115b, 4.119, Diagnostic Codes 7520-7525, 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1970 to October 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran filed his claim for increased evaluation for his diabetes mellitus on April 9, 2012; the Board has considered the pertinent evidence since April 9, 2011 in conjunction with this decision. See 38 C.F.R. § 3.400(o). Throughout the appeal period, the Veteran has been assigned a 20 percent evaluation for his diabetes mellitus with ED under Diagnostic Code 7806. Diabetes mellitus warrants a 20 percent rating if management of the disease requires insulin and restricted diet, or oral hypoglycemic agents and restricted diet. A 40 percent rating is warranted if management of the disease requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted if management of the disease requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice per month visits to a diabetic care provider, plus complications that would not be compensable if separately rated. A 100 percent rating is warranted for more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. “Regulation of activities” has been defined as the situation where a veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,443 (May 7, 1996) (defining “regulation of activities,” as used by VA in 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). The rating of diabetes mellitus under DC 7913 includes successive rating criteria, whereby the evaluation of each higher rating includes the criteria of each lower rating, such that if a component is not met at any one level, a veteran can only be rated at the level that does not require the missing component. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive ‘and’ in a statutory provision means that all of the conditions listed in the provision must be met). Compensable complications are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). A July 2013 VA examination report reflects a diagnosis of diabetes treated with prescribed insulin once per day and prescribed oral hypoglycemic agents. The examiner noted that the Veteran did not require regulation of activities as part of medical management of diabetes mellitus. The Veteran did not experience hypoglycemic reactions or ketoacidosis that required hospitalization, and he visited his diabetic care provider less than 2 times a month for those complications. The Veteran did not have progressive weight loss or loss of strength. The examiner concluded that the Veteran’s diabetes impacted his ability to work because he had to remember to take his medications and eat regularly, take his blood sugar daily, and it could contribute to general fatigue. The Veteran was also noted to have erectile dysfunction; he reported that about 75 percent of the time he was unable to have an erection adequate for sexual intercourse on his own, although 25 percent of the time he was able to without medications. The Veteran declined examination of his penis, testes, epididymis, and prostate, reporting normal anatomy. The Veteran was not noted to have had an orchiectomy, any voiding dysfunction, or retrograde ejaculation as a result of his erectile dysfunction. An April 2015 VA examination report indicates that the Veteran was prescribed oral hypoglycemic agent(s) and insulin injection once a day; he also managed his diabetes with a restrictive diet. The examiner noted that there were no restrictions in activities as part of medical management of diabetes, that the Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than twice a month, that there was no hospitalization due to ketoacidosis or hypoglycemia, and that there was no progressive unintentional weight loss or progressive loss of strength. He also noted that the Veteran had complications of diabetes, specifically diabetic peripheral neuropathy. He opined that the diabetes did not impact the Veteran’s ability to work. In a separate April 2015 VA examination report, the examiner noted that the Veteran had an onset of ED in 2010 that has stayed the same since that time and that the Veteran has not tried medications for the condition. The Veteran’s penis, testes, and epididymis were normal; his prostate was not examined as it was not relevant to ED. The examiner also noted that the Veteran had not had an orchiectomy, and that there was no voiding dysfunction or retrograde ejaculation as a result of his erectile dysfunction. A review of the Veteran’s VA treatment records associated with the claims file from throughout the appeal period generally demonstrate continued treatment for his diabetes mellitus; the Veteran is not shown to have any regulation of activities due to his diabetes mellitus throughout those records. Based on the foregoing evidence, the Board must conclude that the Veteran does not have regulation of activities for rating purposes with regards to his diabetes mellitus; likewise, there is no evidence of any episodes of hypoglycemia or ketoacidosis requiring hospitalization throughout the appeal period. Instead, the evidence throughout the appeal period demonstrates that the Veteran’s diabetes is managed with a restricted diet and either oral hypoglycemic agents or insulin; such is commensurate to a 20 percent evaluation. In accordance with Note (1), the Board has also considered the complications of the Veteran’s diabetes mellitus, but finds that none provides a basis for any higher or additional rating. As of June 11, 2005, the RO granted a separate rating for his peripheral neuropathy of sciatic nerve of the right and left lower extremities and as of November 13, 2014, the RO granted a separate rating for his peripheral neuropathy of femoral nerve of the right and left lower extremities. The Veteran has not disputed those assigned evaluations and as such they are not part of this appeal at this time. Furthermore, although the Veteran is shown to have loss of penile power in this case, he is not shown to have any penile deformity in this case, as his penis was noted as or reported by the Veteran to be normal throughout the appeal period. Likewise, he is not shown to have removal of half or more of his penis, removal of his glans, atrophy or removal of either or both of his testes, or to have chronic epididymo-orchitis due to his ED throughout the appeal period. Consequently, a compensable evaluation for the Veteran’s ED is not warranted in this case, and therefore his ED is combined with his diabetes mellitus evaluation as required in this case. See 38 C.F.R. §§ 4.115b, 4.119, Diagnostic Code 7520-7525, 7913. Accordingly, based on the foregoing reasons, the Veteran’s claim for an evaluation in excess of 20 percent for his diabetes mellitus with ED must be denied throughout the appeal period based on the evidence of record at this time. See 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel