Citation Nr: 18153051 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 11-12 168 DATE: November 27, 2018 ORDER A rating in excess of 20 percent for diabetes mellitus, type II (DM) with erectile dysfunction (ED) is denied. FINDING OF FACT The Veteran's DM with ED requires the use of insulin and a restricted diet; the need for restricted activities has not been demonstrated at any time during the appeal. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for DM with ED have not been met at any time during the appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code (DC) 7913 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to November 1970. In March 2013 the Veteran testified before the undersigned at a Video Conference hearing. A transcript of the hearing has been associated with the record. In January 2015, July 2015 and January 2017, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. 1. Entitlement to a rating in excess of 20 percent for DM with nephropathy and ED Legal Criteria Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2018). The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from disabilities incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Each disability must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2 (2018). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings for DM are governed by criteria and set forth in 38 C.F.R. § 4.119, DC 7913. A rating of 20 percent is assigned for DM requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A rating of 40 percent is assigned for DM requiring insulin, a restricted diet, and regulation of activities. A rating of 60 percent is assigned for DM requiring insulin, restricted diet, and regulation of activities and involving episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or visits to a diabetic care provider twice a month plus complications that would not be compensable if separately evaluated. A rating of 100 percent is assigned for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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. 38 C.F.R. § 4.119, DC 7913. Noncompensable complications are considered part of the diabetic process under Code 7913. See Note 1 to Code 7913. The criteria for a 40 percent rating under DC 7913 are conjunctive not disjunctive-i.e. there must be insulin dependence and restricted diet and regulation of activities. "Regulation of activities" is defined by DC 7913 as the "avoidance of strenuous occupational and recreational activities." Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Analysis In a July 2006 rating decision, the RO granted service connection for DM. A 20 percent evaluation was assigned, effective June 14, 2005. In an October 2009 rating decision, the Veteran was granted service connection and a noncompensable rating for ED, secondary to his DM. In a February 2018 rating decision, the Veteran was granted service connection and a separate compensable evaluation for diabetic nephropathy. The Veteran filed claims for an increased rating for his service-connected DM in August 2009 and March 2010. The medical evidence of record shows that throughout the appeal period, the Veteran's DM with ED has required hypoglycemic agents, insulin and a restricted diet, but there is no evidence that he has been advised to restrict his activities due to his disability. In this regard, March 2010 VA treatment records show that he was on insulin and his DM was poorly controlled, but he was working full time. On VA examination in October 2009 and January 2011, the Veteran was noted to be taking medication and insulin for his DM, but he was not restricted in activities or his ability to perform strenuous activities due to his DM. An August 2011 statement from the Veteran’s private physician indicated that his DM was poorly controlled while working the night shift, and it was highly recommended that he only work the day shift for medical reasons. However, the physician did not indicate that the Veteran needed to specifically restrict any activities while working due to his DM. On VA examination in July 2012, the examining nurse practitioner (NP) noted that the Veteran was taking an oral hypoglycemic agent and insulin. The report also notes that the Veteran required regulation of activities as part of medical management of DM. However, examples of regulation of activities given were walking for 1 mile or riding a stationary bike for 5 miles. As this is not regulation of activities as defined in the rating criteria, the RO requested that a VA physician answer the question of whether the Veteran required avoidance of strenuous occupational and recreational activities with the intention of avoiding hypoglycemic episodes. In an August 2012 addendum opinion, a VA physician concluded that the Veteran does not required avoidance of strenuous occupational and recreational activities to prevent hypoglycemic episodes, because “[d]iabetic patients can participate in strenuous occupational and recreational activities.” The physician also specifically noted that such question may require the guidance and education from a provider who “understands state of the art management of [d]iabetes [m]ellitus.” As such, the Board requested an additional VA opinion from an endocrinologist. Prior to the opinion from an endocrinologist being received, VA opinions were received in February 2015, from a VA physician, and in June 2017, from the VA NP who examined the Veteran in July 2012. The February 2015 VA staff physician concluded that there was no evidence that the Veteran’s physical activities had been restricted by any healthcare provider to avoid any strenuous activities in order to prevent hypoglycemic episodes, there was no evidence of any documented recurrent hypoglycemic episodes on record, and there was no evidence of any cardiac condition for him to avoid strenuous activities in order to prevent hypoglycemic episodes. In June 2017, the NP opined that there was no evidence the Veteran had restriction of his activities, to include occupational or recreational activities, in 2012, as he was working at that time full-time at the post office until retiring in 2013. The examiner also noted that the Veteran did not have activity restrictions at that time by any of his providers. In December 2017, an opinion was finally submitted by a VA endocrinologist, as requested. The examiner unequivocally concluded that the Veteran’s DM would not be a basis for restricting his physical activity. In fact, he noted that an individual like the Veteran with poor blood sugar control would be encouraged to engage in increased physical activity. The examiner noted further that there would be no concern about the possibility of hypoglycemia with the level of blood sugar control the Veteran had at the time. In a July 2018 addendum opinion, the examiner noted that the Veteran had ever received a recommendation to limit his activity due to DM, and his diabetes care at the VA, though unsuccessful in fully controlling his DM, was standard care and full attempts were made to use all available resources to help the Veteran control his diabetes, including management of BP and lipids. Based on these medical opinions and the VA treatment records, the Board finds that the preponderance of the evidence shows that the Veteran has not, at any time during the appeal, required restriction of activities due to his DM. There is also no evidence of episodes of ketoacidosis or hypoglycemic reactions requiring one, two or three hospitalizations per year, visits to a diabetic care provider weekly or twice a month, or progressive loss of weight and strength. See October 2009, January 2011, July 2012, August 2012, February 2015, June 2017, July 2018 VA examination reports and opinions. Accordingly, a disability rating greater than 20 percent is not warranted for the Veteran's DM with nephropathy and ED. 38 C.F.R. § 4.119, DC 7913. As noted above, the Veteran is also currently service-connected for ED and diabetic nephropathy, which have been identified as complications of his DM. A compensable rating has been assigned for his diabetic nephropathy, but not for his ED. 38 C.F.R. § 4.115b, DC 7522 (2018). The Board must thus determine whether a compensable disability rating can in fact be awarded for ED. ED is rated by analogy, to "penis, deformity, with loss of erectile power," DC 7522. See 38 C.F.R. § 4. 20 (2018). The rating schedule provides a 20 percent rating for deformity of the penis with loss of erectile power. This is a conjunctive set of criteria; both must be present to warrant compensation at the sole authorized level, 20 percent. In this case, the medical evidence does not indicate that the Veteran has a penile deformity and he does not contend otherwise. Where the criteria for a compensable rating under a diagnostic code are not met, as here, a non-compensable rating is awarded. See 38 C.F.R. § 4.31 (2018). Consequently, there is no basis for payment of compensation for ED under the rating schedule. The Board also points out that special monthly compensation based on loss of use of a creative organ under 38 U.S.C. § 1114 (k) has in fact been awarded. The Veteran is competent to report the symptoms of his DM with nephropathy. His complaints are credible. The Veteran's complaints have been considered in the above noted evidence; however, evaluations for VA purposes have not shown the severity required for a higher schedular rating, as discussed above. Additionally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record with regards to this claim. See Doucette v. Shulkin, 28 Vet. App. 366 (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). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Yankey, Counsel