Citation Nr: 18153623 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-43 619 DATE: November 29, 2018 ORDER Entitlement to a disability rating higher than 20 percent for diabetes mellitus, type II, prior to May 3, 2018 is denied. Entitlement to a 40 percent disability rating for diabetes mellitus, type II from May 3, 2018 is granted, subject to the laws and regulations governing the payment of monetary VA benefits. A separate 20 percent disability rating for right upper extremity peripheral neuropathy is granted, subject to the laws and regulations governing the payment of monetary VA benefits. A separate 20 percent disability rating for left upper extremity peripheral neuropathy is granted, subject to the laws and regulations governing the payment of monetary VA benefits. A separate non-compensable disability rating for bilateral diabetic retinopathy is granted, subject to the laws and regulations governing the payment of monetary VA benefits. A separate non-compensable disability rating for bilateral angle-closure glaucoma is granted, subject to the laws and regulations governing the payment of monetary VA benefits. FINDINGS OF FACT 1. Prior to May 3, 2018, the Veteran's diabetes mellitus, type II, was treated with a combination of hypoglycemic agents, diabetic diet, insulin that was taken once a day, visits to his diabetic care provider less often than twice a month, and less than one hospitalization a year for episodes of ketoacidosis or hypoglycemia. 2. Since May 3, 2018, the Veteran's diabetes mellitus, type II, has been treated with a combination of hypoglycemic agents, diabetic diet, insulin that is taken once a day, and regulation of activities. 3. The Veteran has peripheral neuropathies in his bilateral upper extremities that have resulted from his service-connected diabetes mellitus, type II, and which have resulted in mild incomplete paralysis of the musculospiral nerves in both upper extremities. 4. The Veteran has bilateral diabetic retinopathy that has not resulted in any loss of visual acuity or field of vision and that has not caused the Veteran to experience any incapacitating episodes. 5. The Veteran has bilateral angle-closure glaucoma that has not resulted in any loss of visual acuity or field of vision and that has not caused the Veteran to experience any incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 20 percent for diabetes mellitus, type II, prior to May 3, 2018 are not met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2017). 2. The criteria for a 40 percent disability rating for diabetes mellitus, type II, from May 3, 2018 are met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2017). 3. The criteria for a separate 20 percent disability rating for right upper extremity peripheral neuropathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8514 (2017). 4. The criteria for a separate 20 percent disability rating for left upper extremity peripheral neuropathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8514 (2017). 5. The criteria for a separate non-compensable disability rating for bilateral diabetic retinopathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.79, Diagnostic Code 6006 (2017). 6. The criteria for a separate non-compensable disability rating for bilateral angle-closure glaucoma are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.79, Diagnostic Codes 6012, 6061-66, 6080, 6081 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from October 1966 through October 1968 and from June 1974 through March 1975. In a June 2018 brief, the Veteran's representative submitted arguments in support of a petition to reopen a previously denied claim of service connection for hepatitis B. Indeed, that issue was denied in an October 2013 rating decision and an appeal as to that issue was initiated by the Veteran in a timely December 2013 Notice of Disagreement. A Statement of the Case addressing the petition to reopen was issued in August 2016; however, the Veteran expressly excluded the issue of his petition to reopen from his September 2016 substantive appeal. Also, the Veteran did not file a subsequent substantive appeal concerning his petition. The Board does not accept jurisdiction over any issue concerning the Veteran's petition to reopen his claim for service connection for hepatitis B. As discussed more fully below, the Veteran raises assertions that he has various disorders that are associated with his service-connected diabetes. Separate 10 percent disability ratings for peripheral neuropathies in the Veteran's lower extremities were awarded to the Veteran in an August 2016 rating decision. The Veteran has not raised any express disagreement with any aspect of that grant. As such, the Board also does not take jurisdiction of any issues concerning the peripheral neuropathies in the Veteran's lower extremities. Similarly, the Veteran has previously asserted that he has erectile dysfunction that is associated with his diabetes. He has expressed in a January 2018 statement, however, that he wishes to withdraw such assertions. Finally, the Board notes also that the issue of the Veteran's entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) was denied during the appeal period in a May 2018 rating decision. The Veteran has not raised any disagreement as to that denial. As such, the Board also does not accept jurisdiction over the issue of the Veteran's entitlement to TDIU. 1. Entitlement to a disability rating higher than 20 percent for diabetes mellitus, type II The Veteran asserts generally in his June 2012 claim and other claims submissions that his diabetes has worsened and that he is entitled to a disability rating higher than 20 percent for his diabetes. He asserts also that he has various disorders that he believes are associated with his diabetes, including glaucoma, cataracts, and peripheral neuropathies in his upper extremities. To that end, he argues also that separate disabilities ratings should be assigned for those associated disorders. The Veteran's diabetes has been rated pursuant to the criteria under 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. Those criteria provide for the assignment of a 20 percent disability rating for diabetes mellitus that has required insulin and a restricted diet, or; has required oral hypoglycemic agent and a restricted diet. A 40 percent disability rating is warranted for diabetes mellitus that has required insulin, restricted diet, and regulation of activities. A 60 percent disability rating is assigned where diabetes mellitus has required 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 disability rating is assigned where diabetes mellitus has required 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 (2017). Records for VA treatment received by the Veteran throughout the appeal period show that the Veteran has been followed for ongoing diabetes mellitus, type II. January 2012 records note that the Veteran's diabetes was at that time under "very poor control" and that the Veteran was being advised to lose weight and follow his dietary regimen, or else, insulin treatment would be required. Subsequent records indicate that the Veteran was seen periodically for diabetic care and that his diabetes came to be under better control. During treatment in September 2012, the Veteran reported that he had improved his diabetic intake and that blood sugar readings taken at home indicated glucose levels that were consistently under 140. A September 2013 diabetes examination showed that the Veteran's diabetes continued to be managed by a combination of diet, hypoglycemic agents, insulin taken once a day, and visits with his diabetic care provider less frequently than twice a year. There was no sign of weight loss or loss of strength or the need for any restriction of the Veteran's activities. Indeed, the Veteran reported during the examination that he was looking to exercise more regularly. During VA diabetic care in November 2013, the Veteran's glucose values were at 200. The Veteran was placed on insulin treatment at that time. During follow-up care in December 2013, the Veteran reported that he had two hypoglycemic episodes marked by dizziness and sweating following morning exercise since beginning his insulin treatment. The Veteran's dosages of Glyburide and Metformin were decreased; however, he was advised to continue taking insulin. Subsequent VA treatment records note that the Veteran's diabetes continued to be managed by a combination of insulin and diet. Private hospital records from Brandon Regional Hospital show that the Veteran was admitted in July 2016 for hypoglycemia and an acute kidney injury. There is no opinion or other medical evidence in the record indicating that the Veteran's kidney disorder is related in any way to the Veteran's diabetes. Also, other than the instances of hyperglycemia reported by the Veteran shortly after beginning insulin treatment in November 2013 and the July 2016 hypoglycemic event, there is no indication in the records of any other hypoglycemic or hyperglycemic events. Disability benefits questionnaires submitted in February 2018 by Dr. C.M.T. and Dr. J.S. state that the Veteran's diabetes continued to be managed by restricted diet, oral hypoglycemic agents, and insulin injected once a day. The Veteran reported that he experienced sweating, dizziness, fatigue, and loss of stamina from overexertion during climbing stairs, and exercise. Both questionnaires note that the Veteran was being followed by his diabetic care provider less than twice a month and that he had one episode of ketoacidosis or hyperglycemia over the preceding 12 month period. Re-examination of the Veteran's diabetes in May 2018 showed that the Veteran continued to manage his diabetes through diet, hypoglycemic agents, and insulin which he continued to take once a day. Again, there were no findings of weight loss or loss of strength. Concerning function, however, the examiner opined that the Veteran's diabetes prevented the Veteran from being able to function in more strenuous physical labor and was restricted to more sedentary work that required exertion of only mild force. Overall, the evidence for the appeal period at issue shows that the Veteran's diabetes has been managed by a combination of oral hypoglycemic agents, prescribed diet, insulin taken once per day, and follow-up with his diabetic care providers less than twice a month. The evidence does show that the Veteran was hospitalized in July 2016 for the hypoglycemic episode. That instance appears to be an isolated occurrence. Indeed, the evidence indicates that the Veteran has one or fewer hypoglycemic or hyperglycemic episodes per year. Although the Veteran has reported in 2013 sweating, dizziness, and fatigue after exertion, there was no indication in the record that his diabetic care providers ever instructed him to avoid certain activities prior to the May 2018 examination. Given the foregoing, the criteria for a disability rating higher than 20 percent for the Veteran's diabetes prior to the May 2018 examination are not met. The criteria for a 40 percent disability rating are met from May 3, 2018 (the date of the May 2018 diabetes examination). Subject to the foregoing, the evidence shows that the Veteran has peripheral neuropathies in his upper extremities that are associated with his diabetes. The VA treatment records document complaints by the Veteran of numbness, tingling, and pain in his hands and fingers that were diagnosed as bilateral carpal tunnel syndrome and peripheral neuropathies in 2013. February 2018 disability benefits questionnaires from Dr. C.M.T. and J.S. concur that the Veteran has peripheral neuropathies in his upper extremities that are due to his diabetes. A May 2018 neurological examination revealed decreased grip strength to 4/5 bilaterally and decreased sensation during light touch over the Veteran's hands and fingers. Overall, the examiner concurred also that the neurological findings are consistent with upper extremity peripheral neuropathies that are associated with diabetes and marked by mild incomplete paralysis of the musculospiral nerves of both upper extremities. The opinions expressed in the February 2018 questionnaires and the May 2018 examination are probative. As such, the Veteran is entitled to a separate disability rating for peripheral neuropathies in his upper extremities. Disabilities caused by paralysis of the musculospiral (radial) nerve are rated by application of the criteria under 38 C.F.R. § 4.124a, DC 8514. Under those criteria, a 20 percent disability rating is assigned for mild incomplete paralysis regardless of whether the disability involves the major or minor extremity. Where the disability is marked by moderate incomplete paralysis of the musculospiral nerve, a 30 percent disability rating is assigned for the major upper extremity and a 20 percent disability rating is assigned for the minor upper extremity. Where the evidence shows incomplete severe paralysis of the musculospiral nerve, a 50 percent disability rating is assigned for the major upper extremity, whereas a 40 percent disability rating is assigned for the minor upper extremity. In instances where the disability involves complete paralysis of the musculospiral nerve with drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity, a 70 percent disability rating is assigned for the major upper extremity. A 60 percent disability rating is assigned for the minor upper extremity. Based on the evidence, the criteria for a 20 percent disability rating are met for the peripheral neuropathies in the Veteran's right and left upper extremities. The evidence shows also that the Veteran has bilateral cataracts and retinopathy that are attributable to his service-connected diabetes. A January 2012 treatment record notes that the Veteran had a history of diabetic retinopathy. That diagnosis was confirmed during a February 2012 eye examination. A September 2013 eye examination showed that the Veteran had bilateral cataracts, with onset in 2009, that were also as likely as not attributable to the Veteran's diabetes. A December 2016 eye examination confirmed the previous diagnosis of angle-closure glaucoma. Similar diagnoses and conclusions are given in an April 2018 eye examination. The foregoing diagnoses and opinions are entitled to probative weight and establish that the Veteran is entitled to a separate disability rating for diabetic retinopathies and angle-closure glaucoma. Disabilities due to retinopathy are rated in accordance with the criteria under 38 C.F.R. § 4.79, DC 6006. In turn, disabilities that are rated under DC 6006 are to be rated pursuant to a General Rating Formula. Under the General Rating Formula, a 10 percent disability rating is assigned for disabilities with incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months. A 20 percent disability rating is assigned for disabilities with incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent disability rating is warranted for disabilities with incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. A 60 percent disability rating is assigned for disabilities with incapacitating episodes having a total duration of at least six weeks during the past 12 months. The regulation defines an "incapacitating episode" as a period of acute symptoms that are severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. The evidence shows that the Veteran's retinopathy has not resulted in any incapacitating episodes. Indeed, the Veteran denied having such episodes during his eye examinations. Given the same, the Veteran is entitled to a non-compensable disability rating for bilateral retinopathies. Angle-closure glaucoma is rated pursuant to the rating criteria under 38 C.F.R. § 4.79, DC 6012. Those criteria instruct that disabilities rated under that diagnostic code may be rated on the basis of either visual impairment due to angle-closure glaucoma or incapacitating episodes, whichever results in a higher rating. DC 6012 provides express criteria for rating disabilities on the basis of incapacitating episodes. Under those criteria, a minimum 10 percent disability rating is assigned if continuous medication is required to treat the glaucoma. A 20 percent disability rating is assigned for disabilities with incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent disability rating is assigned for disabilities with incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. A 60 percent disability rating is warranted for disabilities with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Again, the regulation defines an "incapacitating episode" as a period of acute symptoms that are severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. The evidence shows that the Veteran has not experienced any incapacitating episodes due to his angle-closure glaucoma. Although the records show that the Veteran has a history of decreased visual acuity and the need for prescription eyeglasses, the examining clinician noted in the April 2018 eye examination that the Veteran's loss of visual acuity was not attributable to cataracts, glaucoma, or retinopathy. That opinion is not contradicted by other information or evidence in the record and is entitled full probative weight. The Board observes also that repeated tests for the Veteran's visual field conducted during his eye examinations revealed no evidence of loss of visual field. Similarly, no such findings are indicated in the records for VA and private eye treatment received by the Veteran. Based on the foregoing, the Veteran is entitled to a separate non-compensable disability rating for glaucoma. In summary, the Veteran is not entitled to a disability rating higher than 20 percent for diabetes mellitus, type II, prior to May 3, 2018. He is, however, entitled to a 40 percent disability rating for diabetes mellitus, type II, from May 3, 2018. The Veteran is also entitled to separate 20 percent disability ratings for peripheral neuropathies in his right and left upper extremities. He is also entitled to separate non-compensable disability ratings for diabetic retinopathies and glaucoma. To that extent, this appeal is granted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Lee, Counsel