Citation Nr: 18158105 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 12-29 325 DATE: December 18, 2018 ORDER Entitlement to a rating in excess of 20 percent for type II diabetes mellitus prior to July 8, 2016 is denied. REMANDED Entitlement to a compensable evaluation for diabetic retinopathy from July 14, 2014, in excess of a 10 percent rating for bilateral cataracts and diabetic retinopathy from April 16, 2015, and in excess of a 30 percent rating for bilateral cataracts and diabetic retinopathy from July 14, 2016 is remanded. FINDING OF FACT Prior to July 8, 2016, management of the Veteran’s diabetes required insulin, a restricted diet, and at various times the use of an oral hypoglycemic agent. It did not require a regulation of activities. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for type II diabetes mellitus prior to July 8, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.6, 4.8-4.16, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1991 to May 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the October 2012 substantive appeal (via VA Form 9), the Veteran requested a hearing before a Veterans Law Judge (VLJ). Later that same month, the Veteran withdrew the hearing request. 38 C.F.R. § 20.704(e). In a July 2015 letter, the Veteran again requested a hearing before a VLJ. The appeal was remanded by the Board in September 2015 to schedule this hearing; however, in December 2015, the Veteran withdrew the hearing request. Id. In a July 2015 rating decision, the RO granted service connection for cataracts as a noncompensable complication of type II diabetes mellitus. Accordingly, it was rated as part of the diabetic process. The appeal was remanded by the Board in a January 2016 decision. It is noted that the Board found the issue of entitlement to a total disability rating based on individual unemployability (TDIU) had been raised by the evidence of record and was, accordingly, added to the title page. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a March 2016 statement, the Veteran clarified that she did not wish to pursue a claim of entitlement to TDIU. Thus, she has limited her appeal in that regard. AB v. Brown, 6 Vet. App. 35, 38 (1993). In an August 2016 rating decision, the RO found CUE with the July 2015 rating decision in terms of the evaluation assigned for bilateral cataracts. The disability rating was retroactively increased to 10 percent from April 16, 2015, and to 30 percent from July 14, 2016. Service connection for bilateral diabetic retinopathy was also granted and assigned a 0 percent rating effective July 14, 2014. The ultimate effect of these actions was that the Veteran was service-connected for diabetic retinopathy as a noncompensable part of the diabetic process effective July 14, 2014. Effective April 16, 2015 the diabetic retinopathy and cataracts were combined into a separate compensable disability rated 10 percent from that date to July 13, 2016 and 30 percent from July 14, 2016 onward. As the above actions granted less than the maximum benefit allowed under VA law and regulations, the claim for increase remained on appeal. AB, 6 Vet. App. at 38. In a June 2017 decision, the Board awarded a partial grant of the claim of entitlement to an increased rating for type II diabetes mellitus. The claim of entitlement to an increased rating for the Veteran’s eye disability was remanded for further development. In a February 2018 decision, the Board remanded the claim of entitlement to an increased rating for an eye disability for further development. The Veteran appealed the partial grant of the claim of entitlement to an increased rating for type II diabetes mellitus to the Court of Appeals for Veterans Claims (Court). In a May 24, 2018 Order, the Clerk of the Court granted a joint motion for partial remand (JMPR). The JMPR vacated and remanded the issue of entitlement to a rating in excess of 20 percent for type II diabetes mellitus prior to July 8, 2016, for action consistent with the terms of the joint motion. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to a rating in excess of 20 percent for type II diabetes mellitus prior to July 8, 2016 The Veteran seeks a rating in excess of 20 percent for type II diabetes mellitus (“diabetes”) prior to July 8, 2016. The appeal period before the Board begins on May 29, 2008, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The appeal period ends on July 8, 2016, as limited by the finality of the June 2017 Board decision and the terms of the May 2018 JMPR. For the reasons that follow, the Board finds that a rating in excess of 20 percent for diabetes prior to July 8, 2016 is not warranted. The Veteran’s diabetes is rated pursuant to 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. A 20 percent rating is warranted where treatment requires insulin and a restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted where treatment requires insulin, a restricted diet, and regulation of activities. The rating criteria for DC 7913 are considered conjunctive and successive. Camacho v. Nicholson, 21 Vet. App. 360, 367-68 (2007). “Regulation of activities” means the “avoidance of strenuous occupational and recreational activities.” 38 C.F.R. § 4.119, DC 7913 (defining the term in the criteria for a 100 percent rating). Medical evidence is required to support this criterion. Camacho, 21 Vet. App. at 363-64. Generally, the question of whether there is a regulation of activities “turns on whether there is medical evidence of record that supports a finding that the [veteran] has been instructed to avoid ‘strenuous occupational and recreational activities.’” Id. at 364. As pertinent to this appeal, 38 C.F.R. § 4.119, DC 7913, Note (1), states that compensable complications of diabetes are evaluated separately unless used to support a 100 percent rating, and noncompensable complications are considered part of the diabetic process under DC 7913. Prior to July 8, 2016, medical records show the Veteran’s diabetes is managed by insulin, a restricted diet, and at various times an oral hypoglycemic agent. See, e.g., VA treatment record (7/7/2014) and September 2011 VA examination report. The occurrence of these courses of treatment is established, and they meet the criteria for a 20 percent rating under DC 7913. A higher 40 percent rating is warranted if diabetes is also managed with a “regulation of activities.” In conducting a holistic review of the record, see 38 C.F.R. § 4.1, the Board acknowledges a November 2005 VA examination report that indicated the Veteran should avoid strenuous activities that can lead to hypoglycemic reactions. This was an affirmative finding of a regulation of activities; however, it occurred well before the relevant appeal period and there were no interim treatment records or examinations extending this finding. During the relevant appeal period, the Veteran’s treatment records did not provide for such an explicit finding and the August 2009 and April 2015 VA examiners affirmatively stated that management of diabetes did not require a regulation of activities; the September 2011 VA examiner made no specific finding regarding regulation of activities. During the August 2009 VA examination, the examiner elicited from the Veteran a history of her diabetes, hypertension, and neuropathy of all extremities. In pertinent part, the Veteran reported overall functional impairment as follows: in occupation cannot type as fast or as long with hands and arms cramping up, unable to walk and run distances like used to, and unable to participate in sporting events with kids. In the September 2011 VA examination, the effect of diabetes on the Veteran’s usual occupation was described as easy fatigue, difficulty standing and walking for extended periods of time, intermittent tingling and numbness of hands and feet. The effect of diabetes on the claimant’s daily activity was described as easy fatigue, difficulty standing and walking for extended periods of time, intermittent tingling and numbness of hands and feet, and cannot exercise strenuously. The Veteran also reported that she has had to change her daily routines due to the condition. In that regard, she reported difficulty with tasks such as carrying groceries and that she is not able to stand or walk for long periods of time. The Veteran’s diabetes was also evaluated in April 2015. That evaluation was more extensive than the August 2009 and September 2011 VA examinations because it identified all diabetic complications and non-diabetic disabilities aggravated by the diabetes and completed separate Disability Benefit Questionnaires (DBQs) for each one. The DBQs identified the symptoms and functional effects of each disability; thereby, differentiating them between diagnoses. See Mittleider v. West, 11 Vet. App. 181 (1998). The DBQ for diabetes showed no functional impact on the Veteran’s ability to work. The numbness and tingling in all extremities was attributed to diabetic neuropathies of the upper and lower extremities. Difficulty with prolonged sitting, standing, walking, lifting, and heavy impact activities was attributed to the diabetic neuropathies, as well. The DBQ relating to hypertensive vascular disease found an interview-based METs level of 7-10 METs with symptoms of fatigue at that level. The DBQ relating to peripheral arterial disease and venous stasis hyperpigmentation showed the Veteran identified related symptoms of claudication after walking more than 10 yards at a time, diminished peripheral pulses, and trophic changes of the skin to the lower extremities. The DBQ relating to hypertension found a functional impact of nervousness, headaches, and difficulty in high impact activities and prolonged activities. In that regard, the Veteran reported ankle swelling. In the DBQ relating to diabetic nephropathy, the examiner wrote that the Veteran’s renal manifestations and peripheral neuropathy impact the ability to work due to having to constantly monitor blood sugars up to three times daily as well as constant pain to multiple sites caused by uncontrolled diabetes. The DBQ relating to cataracts found no functional impact on the ability to work. In sum, the functional limitations described by the Veteran, to include those identified in the August 2009 and September 2011 VA examination reports, were wholly attributed to her diabetic complications or non-diabetic disabilities aggravated by diabetes. The Board finds these findings from the April 2015 VA evaluation to outweigh the August 2009 and September 2011 VA examiner opinions based on the depth and completeness of the evaluation. The April 2015 VA evaluation is considered the most probative evidence of record in that regard, and there is no doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Given the forgoing, the above functional effects are not indicative of a regulation of activities or avoidance of strenuous occupational or recreational activities because they are not attributed to the service-connected diabetes itself. They are attributed to separate diabetic complications or non-diabetic disabilities found to have been aggravated by diabetes, which are not, in the Veteran’s case, rated as part of her diabetic process. It is further noted that even if they were attributable to diabetes, they would still not be considered a regulation of activities within the meaning of DC 7913 because they do not constitute a course of management for diabetes but are simply functional effects. Camacho, 21 Vet. App. at 364 (the medical evidence should support that the veteran has been instructed to avoid strenuous occupational and recreational activities). The only functional impairment directly attributed to service-connected diabetes is occupational impairment from having to monitor blood sugar three times per day. A February 2013 letter from Dr. R.E. at the VA Women’s Health Clinic indicated the Veteran’s service-connected disabilities included peripheral neuropathy, varicose veins, and venous insufficiency. The doctor wrote that the Veteran uses insulin only, no oral medication, to control her diabetes. The doctor added that the Veteran is required to restrict her diet, use her insulin daily, and regulate her activities (i.e., follow a regular daily schedule) in order to optimize her diabetic control. The Board recognizes Dr. R.E. to be a VA physician who treated the Veteran during the relevant appeal period, somewhat akin to a primary care physician. Nowhere in the Veteran’s VA treatment records, to include those authored by Dr. R.E., was it indicated that the Veteran was prescribed a regulation of activities or instructed to avoid strenuous occupational and recreational activities. Moreover, Dr. R.E.’s statement, that the Veteran should follow a regular daily schedule, does not logically equate to the Veteran having to avoid strenuous occupational or recreational activities as such activities could potentially be part of a regular schedule. The Board subsequently sought clarification from the Veteran as to what she understood her restrictions to be and what she understood the directive to follow a regular daily schedule to be. The Veteran responded that she understood those to relate to dietary restrictions and maintaining her diet, something she had difficulty with throughout the appeal period. E.g., July 2016 VA examination report. While the Veteran’s statements are competent and credible, the Board understands that a finding of regulation of activities must be medically indicated. The record also contains a July 2015 letter from Dr. J.G., a VA endocrinologist. The doctor wrote that the Veteran’s diabetes is controlled by insulin injections and she has dietary restrictions, as well. The Board recognizes that the VA endocrinology department specifically manages the Veteran’s diabetic treatment. A review of VA endocrinology records shows her diabetic plan of treatment is consistent with that outlined by Dr. J.G.; it does not instruct her to avoid strenuous occupational and recreational activities or prescribe a regulation or limitation of activities. Given the forgoing, the Board finds that the February 2013 from Dr. R.E. is insufficient to allow for a finding that the Veteran’s diabetes requires a regulation of activities. As noted above, the doctor did not say that the Veteran had to avoid strenuous occupational and recreational activities; rather, she stated the Veteran had to regulate her activities and further clarified that meant she should keep a regular schedule. There is a logical disconnect between the definition of regulation of activities from the rating schedule and Dr. R.E.’s statements. Moreover, the Veteran’s diabetes is specifically treated by the VA endocrinology department, whose records do not show she was instructed to avoid such activities and a July 2015 letter from one of her treating physicians in that department did not indicate as much, either. Accordingly, the Board concludes that the evidence prior to July 8, 2016 did not show the Veteran’s diabetes was managed with a regulation of activities. The conjunctive criteria of a 40 percent rating have not been met. An increased 40 percent rating is not warranted. The May 2018 JMPR instructed the Board to consider the July 2016 VA examiner’s statement that the Veteran “must avoid over-exertion due to uncontrolled blood sugar and needs to follow diabetic diet.” This is indicative of a regulation of activities; however, the Veteran is already assigned a higher 40 percent rating based on such a finding from the date of that examination. That period is not under consideration in the issue remaining on appeal. The May 2018 JMPR also instructed the Board to consider the effective date of the increased 40 percent rating for diabetes. As written therein, the Board appeared to have used the July 8, 2016 VA examination report to assign the effective date because the examiner documented a regulation of the Veteran’s activities but noted that the same examination report also stated “PLEASE NOTE THE FEBRUARY 2013 LETTER FROM A VA PHYSICIAN WHICH INDICATES THAT THE VETERAN’S TYPE II DIABETES MELLITUS REQUIRES RESTRICTION OF DIET AND REGULATION OF ACTIVITY.” The JMPR indicated that this notation appeared to show a potential earlier date for the appellant’s regulation of activities. In a June 2017 decision, the Board assigned a 40 percent rating under DC 7913 for diabetes based, in part, on the finding of a regulation of activities in the July 2016 VA examination report. The July 8, 2016 effective date of this increase was based on the date of the July 2016 VA examination report, the first date at which a regulation of activities was shown. The Board acknowledges that under 38 C.F.R. § 3.400(o), the effective date of increase will generally be the earliest date as of which it is ascertainable that an increase in disability had occurred, in this case meaning the earliest date in which it is ascertainable the Veteran required a regulation of activities. As discussed above, prior to July 8, 2016, a regulation of activities was not shown. Its presence was not factually ascertainable prior to that date. The July 2016 VA examination report included the following question: “PLEASE NOTE THE FEBRUARY 2013 LETTER FROM A VA PHYSICIAN, WHICH INDICATES THAT THE VETERAN’S TYPE II DIABETES MELLITUS REQUIRES RESTRICTION OF DIET AND REGULATION OF ACTIVITY. THE EXAMINER IS ASKED TO ELICIT A HISTORY FROM THE VETERAN AS TO WHAT RESTRICTIONS AND REGULATIONS HER DOCTOR HAS PUT ON HER, AND WHAT HER UNDERSTANDING OF THE NEEDD TO ‘FOLLOW A DAILY SCHEDULE’ IS.” This question was provided to the examiner pursuant to the Board’s January 2016 remand directive, which sought clarification as to the Veteran’s understanding of her diabetic management and the meaning of the February 2013 letter. It was not a factual determination by the Board, it simply restated what the February 2013 letter said – “she is required to… regulate her activities (i.e., follow a regular daily schedule)…” Thus, the inclusion of this statement in the July 2016 examination report was not indicative that an earlier effective date may be warranted. The February 2013 letter, itself, was evidence weighing in favor of a regulation of activities at the time. The meaning and probative value of this evidence was discussed above, and the Board concluded that it was insufficient to establish that the Veteran’s diabetes required a regulation of activities or that the statement “follow a regular daily schedule” equated to avoidance of strenuous occupational and recreational activities. In Petermann v. Wilkie, 30 Vet. App. 150, 155-56 (2018), the Court held that even though the rating criteria for DC 7913 are conjunctive and successive, where a veteran’s diabetes manifests in symptoms or functional effects or a level of severity not contemplated by their assigned rating, consideration of an extraschedular evaluation is warranted. This is the case even if such symptoms or functional effects are included in the criteria corresponding to a higher rating for which the veteran did not qualify under DC 7913. As pertinent to this appeal, the Veteran’s diabetes does manifest in symptoms not contemplated by the assigned 20 percent rating under DC 7913. These include requiring multiple daily injections of insulin, hypoglycemic reactions not requiring hospitalization, loss of strength, a diabetic complication that would not be compensable if separately evaluated (e.g., diabetic retinopathy from July 14, 2014), and a number of diabetic complications that are separately evaluated and compensable. 38 C.F.R. § 4.119, DC 7913 (generally found in the rating criteria for 60 and 100 percent ratings). The Board notes that the only functional effect ascribed to the Veteran’s diabetes during the relevant appeal period was interference with work due to having to check blood sugars three times a day. The evidence did not show this caused tardiness or absenteeism or a decrease in the quality of occupational functioning. The functional effects of the diabetic complications that are separately evaluated as service-connected disabilities are best considered in those evaluations and not herein due to the rules against pyramiding. 38 C.F.R. § 4.14. Accordingly, the Board finds that the evidence does not show other related factors such as marked interference with employment of frequent hospitalizations. Referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). There are no additional issues expressly or reasonably raised by the evidence of record concerning this claim. REASONS FOR REMAND 1. Entitlement to a compensable evaluation for diabetic retinopathy from July 14, 2014, in excess of a 10 percent rating for bilateral cataracts and diabetic retinopathy from April 16, 2015, and in excess of a 30 percent rating for bilateral cataracts and diabetic retinopathy from July 14, 2016 is remanded. In June 2017 and February 2018 decisions, the Board remanded the issue of entitlement to an increased rating for bilateral cataracts and diabetic retinopathy for further development. The Board requested that the Goldmann charts attached to the April 2015 and July 2016 VA examinations be interpreted by a physician and that either a new medical opinion be provided or the Veteran reexamined, with the examiner having to review all prior examinations, to include the April 2015 eye examination. A review of the record shows an August 2017 addendum opinion interpreted the results of the Goldmann chart attached to the July 2016 VA examination. While the February 2018 Board decision indicated it was unclear which examination this interpretation was related to, a reexamination of that opinion shows that it was authored by the July 2016 VA examiner and correlates with the findings of the Goldmann chart attached to that examination. An interpretation of the Goldmann chart attached to the April 2015 VA examination has not been obtained. Moreover, the Veteran was afforded a new VA examination in April 2018; however, the examiner indicated that the April 2015 VA examination could not be located for review. Accordingly, the Board finds that there has not been substantial compliance with its prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Remand is required to correct this error. The matter is REMANDED for the following actions: 1. Obtain an addendum opinion interpreting the Goldmann chart attached to the April 2015 VA examination. The examiner should identify the extent of the Veteran’s field of vision along each of the eight principal meridians in each eye. The April 2015 VA examination may be found in the electronic claims file. It is in a file titled “VA Examination” with a receipt date of 04/16/2015. The eye conditions DBQ begins on page 53 of 75 and the Goldmann chart is located on pages 74 and 75. 2. Obtain an addendum opinion for the April 2018 VA examination. If possible, this opinion should be authored by the same examiner who conducted that examination. The examiner is asked to review the April 2015 VA examination and comment as to whether any of the findings or conclusions reached in the April 2018 VA examination would be different. The April 2015 VA examination may be found in the electronic claims file. It is in a file titled “VA Examination” with a receipt date of 04/16/2015. The eye conditions DBQ begins on page 53 of 75 and the Goldmann chart is located on pages 74 and 75. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel