Citation Nr: 18153041 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-46 289 DATE: November 27, 2018 ORDER Entitlement to service connection for left foot cellulitis is denied. Entitlement to a disability rating in excess of 20 percent for service-connected chronic gastritis, status post cholecystectomy, is denied. Entitlement to a compensable disability rating for service-connected mild benign prostatic hypertrophy is denied. Entitlement to a disability rating in excess of 20 percent for service-connected type II diabetes mellitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that left foot cellulitis began during active service, or is otherwise related to an in-service injury, event, or disease. 2. During the period on appeal, the Veteran’s chronic gastritis, status post cholecystectomy, has been manifested by no more than moderate symptoms; it has not been manifested by moderately severe or severe symptoms with impairment of health by anemia and weight loss or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times per year. 3. During the period on appeal, the Veteran’s benign prostatic hypertrophy was not manifested by voiding dysfunction or urinary tract infection. 4. During the period on appeal, the Veteran’s service-connected type II diabetes mellitus did not require treatment with prescribed regulation of activities. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot cellulitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. During the appeal period, the criteria for a disability rating in excess of 20 percent for service-connected chronic gastritis, status post cholecystectomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Codes 7304, 7305. 3. During the period on appeal, the criteria for a compensable disability rating for service-connected mild benign prostatic hypertrophy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7527. 4. During the period on appeal, the criteria for a disability rating in excess of 20 percent for service-connected type II diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 27, 1979, to December 8, 1979, and from December 2003 to December 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2015 and December 2017 rating decisions. In October 2016, the Veteran withdrew his request for a Board hearing, which he reiterated in September 2017. 38 C.F.R. § 20.704(e). The Board notes that in October 2018 the Veteran made a Privacy Act request, which was acknowledged and being processed. The Board notes that new evidence has been associated with the Veteran’s claims file since the August 2016 statement of the case. Generally, the Board may not consider evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ) unless a waiver of initial AOJ review is obtained from the veteran. Disabled Am. Veterans v. Sec’y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c). If, however, a veteran files a substantive appeal on or after February 2, 2013, as occurred here, an automatic waiver of initial AOJ review is implied for new evidence submitted to the AOJ or the Board. 38 U.S.C. § 7105(e). Because the Veteran filed his substantive appeal after February 2, 2013, and neither he nor his representative has specifically requested initial AOJ consideration of the evidence, such waiver is presumed. The Board notes that in a November 2013 rating decision the Veteran was granted service connection for erectile dysfunction and awarded special monthly compensation based on loss of use of creative organ effective September 16, 2013, and in a January 2013 rating decision he was evaluated as 100 percent disabled due to his service-connected adjustment reaction with mixed emotional features and awarded special monthly compensation based on aid and attendance/housebound criteria effective December 22, 2010. He is considered competent. The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for left foot cellulitis is denied. The Veteran essentially contends that he has left foot cellulitis that is related to his active duty service and that, as such, he seeks service connection. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service disease, injury, or event. The Board concludes that, while the Veteran had a one-time diagnosis of left foot cellulitis during the period on appeal, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service disease, injury, or event. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s medical treatment records shows that in April 2013 he presented to the emergency room complaining of left foot pain of one-day duration, which prompted the taking of X-rays and a diagnosis of left foot cellulitis. The records show that he was treated with vancomycin and that his prior medical history of diabetes and diabetic neuropathy was noted. Although the remainder of his medical records are silent for any treatment or repeated diagnosis of left foot cellulitis, the Board finds for the purpose of analysis only that the first Holton element, current diagnosis, is met. The Veteran’s service treatment records are silent for symptoms, complaints, diagnosis, or treatment of left foot cellulitis. Accordingly, the second Holton element, in-service incurrence or aggravation of a disease or injury, is not met, and the claim fails. The Board notes that the Veteran’s service treatment records do show symptoms of left foot and ankle area swelling, changes in pigmentation and pain, and decreased hair growth, which were attributed to bilateral varicose veins and venous insufficiency. In an August 2005 rating decision, the Veteran was granted service connection for mild deep venous insufficiency of the left lower extremity, and in a January 2013 rating decision he was granted service connection for bilateral lower extremity peripheral neuropathy due to diabetes with the noted symptoms of shiny pre-tibials and loss of hair on the lower extremities. While the Veteran believes he has a current diagnosis of left foot cellulitis, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and experience as to the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing in the context of a patient with diabetes. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The preponderance of the evidence of record shows that the diagnosis of left foot cellulitis was a one-off diagnosis that did not require continued treatment, quickly resolved, and may have been related to his diabetes. There is no evidence suggesting that the Veteran’s left foot cellulitis in 2013 was related to his active duty service, which ended in 2004. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Increased Rating Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, 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 primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In September 2013, the Veteran claimed for increased ratings of his service-connected chronic gastritis, benign prostatic hypertrophy, and type II diabetes mellitus. Hence, the appeal period before the Board begins September 18, 2012, the date VA received the claims for increased ratings, plus the one-year look-back period. 38 U.S.C. §§ 5110(a), (b)(3); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). As to each of his increased rating claims, the Veteran essentially contends that the symptoms of his service-connected disabilities are more disabling than contemplated by the assigned disability ratings. The question for the Board, therefore, is whether the Veteran’s disability picture for each service-connected disability more nearly approximates the criteria for a higher evaluation. The Board notes that the Veteran is competent to report that which he has perceived through the use of his senses, including the occurrence of pain and other symptoms of his disabilities. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). He is not, however, competent to state whether his symptoms warrant a specific rating under the schedule for rating disabilities, and the Board finds that the objective medical findings are more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). 2. Entitlement to a disability rating in excess of 20 percent for service-connected chronic gastritis, status post cholecystectomy, is denied. The Veteran’s service-connected chronic gastritis is rated under 38 C.F.R. § 4.114, Diagnostic Code 7304 (ulcer, gastric), which uses the criteria under Diagnostic Code 7305 (ulcer, duodenal), currently evaluated as 20 percent disabling. Under Diagnostic Code 7304, mild, with recurring symptoms once or twice yearly warrants a 10 percent disability rating; moderate, recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous moderate modifications warrants a 20 percent disability rating; moderately severe, less than severe but with impairment of health manifested by anemia and weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year warrants a 40 percent disability rating; severe, pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health warrants a 60 percent, the maximum, disability rating. 38 C.F.R. § 4.114, Diagnostic Code 7304. For purposes of evaluating conditions under 38 C.F.R. § 4.114, the term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained over three months or longer, and the term “minor weight loss” means a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. The term “inability to gain weight” means that there has been substantial weight loss with inability to regain it despite appropriate therapy. “Baseline weight” means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.112. The words slight, moderate, severe, etc., as used in the various diagnostic codes are not defined in the VA Schedule of Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In September 2015, the Veteran was afforded a VA examination for stomach and duodenal conditions, during which it was noted he experienced epigastric pain associated with heartburn that was partially relieved by Zantac. It was noted that he was prescribed ranitidine 150 mg once per day and pantoprazole 40 mg twice per day. It was noted that he had four or more episodes of symptoms per year that lasted less than one day consisting of periodic abdominal pain that was only partially relieved by standard ulcer therapy, transient nausea, and mild vomiting. It was noted that an August 2010 upper endoscopy showed no active ulcer, and August 2015 lab results showed hemoglobin of 14.8 g/dL and hematocrit of 42.9 percent. The examiner noted that an upper endoscopy was scheduled in November 2015. The report of that November 2015 upper endoscopy shows that the Veteran was instructed to continue on his current medications, raise the head of his bed, lose weight, avoid certain foods, and to not lie down for at least three to four hours after meals. The Veteran’s VA medical treatment records show that in June 2018 he was prescribed ranitidine and pantoprazole as noted during the September 2015 VA examination. The Board notes that the Veteran has consistently weighed over 200 pounds throughout the period on appeal. The evidence of record does not establish that a disability rating in excess of 20 percent for the Veteran’s service-connected chronic gastritis is warranted. At no time during the period on appeal has the Veteran’s gastritis symptomatology been characterized as moderately severe as manifested by impairment of health by anemia and weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year to warrant a 40 percent evaluation. Indeed, the evidence shows that the Veteran’s gastric pain is partially relieved by medication, that his episodes of pain last less than one day, and that there have been no changes in weight or hemoglobin/hematocrit level. Although the Veteran reported episodes of mild vomiting, the evidence of record does not show that his gastritis is manifested by anemia and weight loss productive of definite impairment of health as required for an evaluation of 60 percent disabling under Diagnostic Code 7304. Accordingly, the Board finds that the criteria for an evaluation in excess of 20 percent disabling are not met. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 3. Entitlement to a compensable disability rating for service-connected mild benign prostatic hypertrophy is denied. The Veteran’s benign prostatic hypertrophy is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7527, which currently is evaluated as noncompensable. Diagnostic Code 7527, which addresses prostate gland injuries, infections, hypertrophy, and postoperative residuals, directs that the disability be rated as voiding dysfunction or urinary tract infection, whichever is predominate. 38 C.F.R. § 4.115b, Diagnostic Code 7527. Under voiding dysfunction, the particular condition is rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Under the criteria for urine leakage, when requiring the wearing of absorbent materials that must be changed fewer than two times per day warrants a 20 percent disability rating; when requiring the wearing of absorbent materials that must be changed two to four times per day warrants a 40 percent disability rating; and when requiring the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day warrants a 60 percent, the maximum, disability rating. 38 C.F.R. § 4.115a. Under the criteria for urinary frequency, a daytime voiding interval between two and three hours, or; awakening to void two times per night warrants a 10 percent disability rating; a daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent disability rating; a daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent, the maximum, disability rating. Id. Under the criteria for obstructed voiding, obstructive symptomatology with or without stricture disease requiring dilation one to two times per year is noncompensable; marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream), with any one or combination of the following: (1) post-void residuals greater than 150 cc, (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/second), (3) recurrent urinary tract infections secondary to obstruction, or (4) stricture disease requiring periodic dilation every two to three months warrants a 10 percent disability rating; urinary retention requiring intermittent or continuous catheterization warrants a 30 percent, the maximum, disability rating. Id. In September 2015, the Veteran was afforded a VA examination for male reproductive system conditions, during which it was noted that he had benign prostatic hyperplasia, right hydrocele, and left scrotal sac fluid. It was noted that since diagnosis in 2013 he continued with persistent enlarged prostate despite medical treatment. It was noted that he did not take continuous medication, had not had an orchiectomy, did not have renal or voiding dysfunction, and did not have erectile dysfunction or retrograde ejaculation. It was noted that he did not have a history of chronic epididymitis, epididymo-orchitis, or prostatitis. The Veteran’s VA medical records show that during a December 2017 Caregiver Program Annual In-home Monitoring Assessment it was noted that he had bladder continence. It was indicated during a February 2018 primary care follow-up that genitourinary symptoms were negative, which was consistent with reports from August 2016, April 2017, April 2015, and multiple times in 2014. The evidence of record does not establish that a compensable disability rating for the Veteran’s service-connected benign prostatic hypertrophy is warranted. There is no evidence of or contentions of wearing of absorbent materials that must be changed fewer than two times per day; daytime voiding interval between two and three hours, or awakening to void two times per night; or marked obstructive symptomatology. Furthermore, there is no evidence of or contentions of urinary tract infections. Indeed, the evidence establishes that the Veteran’s service-connected benign prostatic hypertrophy is asymptomatic. Accordingly, a compensable disability rating under Diagnostic Code 7527 is not warranted, and the other diagnostic codes evaluating the genitourinary system do not apply. 38 C.F.R. § 4.115b, Diagnostic Codes 7500–7542. The Board notes that the Veteran is compensated for erectile dysfunction in association with his service-connected type II diabetes mellitus and is in receipt of special monthly compensation due to loss of use of a creative organ. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 4. Entitlement to a disability rating in excess of 20 percent for service-connected type II diabetes mellitus is denied. In his February 2016 notice of disagreement, the Veteran contended that because he used insulin twice per day that his disability rating should be increased. The Veteran’s type II diabetes mellitus is rated under 38 C.F.R. § 4.119, Diagnostic Code 7913, currently evaluated as 20 percent disabling. For a higher rating to be warranted, 40 percent, there must be evidence of diabetes requiring one or more daily injection of insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913, 82 Fed. Reg. 50,806 (Nov. 2, 2017). (The Nov. 2, 2017, update added “one or more daily injection of” to the requirement for insulin). Regulation of activities means “avoidance of strenuous occupational and recreational activities.” Id. The requirement of regulation of activities due to diabetes must be based on the clinical findings of a medical professional. See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating under Diagnostic Code 7913. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119. Because the rating criteria under DC 7913 are cumulative and successive, diabetes that does not meet the criteria at any one level of disability is precluded from the assignment of an increased evaluation at any higher level, since “each higher disability rating include[s] the criteria of each lower disability rating.” Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009) (citing Camacho, 21 Vet. App. at 366-67); see also Middleton v. Shinseki, 727 F.3d 1172, 1176–78 (Fed. Cir. 2013). In September 2015, the Veteran was afforded a VA examination for diabetes mellitus, during which it was noted that he was medically managed by restricted diet, the prescription of oral hypoglycemic agents, and insulin injections more than once per day. It was noted that he was not required to regulate his activities, and he visited his diabetic care provider less than twice per month. It was noted that in the past twelve months he had not had episodes of ketoacidosis or hypoglycemia reactions requiring hospitalization. It was noted that lab testing in August 2015 revealed A1C of 9.8 percent and fasting plasma glucose of 265 mg/dL. The Veteran’s VA medical treatment records show that in June 2018 he was prescribed insulin 50 units and liraglutide 1.2 mg every day to treat his diabetes. He was also prescribed metformin 1000 mg two times per day to treat his diabetes. His records also show that at the same time he was prescribed a low sodium, low fat, and low cholesterol diabetic diet and instructed to exercise as tolerated. It was indicated that education was provided on the diagnosis, treatment plan, medications, as well as diet, exercise, and weight control. This prescription is consistent with that given throughout the period on appeal. In April 2017, it was documented that the Veteran did not exercise due to low mood and that, due to concerns about episodes of hypoglycemia, he deliberately kept his glucose elevated by eating rice, potato, or a sandwich at bedtime. It was noted that he was a very difficult patient to manage. The evidence of record does not establish that a disability rating in excess of 20 percent for the Veteran’s service-connected diabetes is warranted. While the medical evidence establishes that he is prescribed both insulin and oral hypoglycemic agents twice a day and he has been instructed to restrict his diet, there is no medical evidence that he is required to regulate his activities. Indeed, it was indicated on the September 2015 VA examination report that the Veteran was not required to restrict his activities. Furthermore, the medical records show that diabetic care providers have consistently instructed him to exercise and lose weight. Hence, the medical evidence does not establish that the Veteran’s disability requires treatment with insulin, restricted diet, and restricted activities, and accordingly, the criteria for the next higher evaluation, 40 percent, are not met. The Board has assessed whether the Veteran demonstrates any compensable complications of diabetes warranting a separate evaluation, and as noted above, he is already evaluated as 100 percent disabled by his service-connected disabilities, which include complications of his diabetes, and in receipt of special monthly compensation. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney