Citation Nr: 18158607 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 18-02 765 DATE: December 18, 2018 ORDER Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to an initial compensable rating for non-proliferative diabetic retinopathy of the bilateral eyes with macular edema of the left eye (eye disabilities) is denied. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus required insulin and a restricted diet; regulation of activities has not been shown. 2. The Veteran’s service-connected eye disabilities have been productive of visual acuity of 20/40 or better in both eyes without visual defect, contraction of visual field, loss of visual field, scotoma, muscle dysfunction, or incapacitating episode. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.119, Diagnostic Code 7913. 2. The criteria for an initial compensable rating for the service-connected eye disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.75-.79, Diagnostic Codes 6006-6066. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from September 1963 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Since the Veteran perfected his appeal, VA has granted service connection for peripheral neuropathy of the upper and lower extremities and erectile dysfunction and assigned a special monthly compensation for loss of use of a creative organ, as complications of his service-connected diabetes mellitus. See Rating Decision (December 2018). As the Veteran has not disagreed with the assigned ratings or effective dates, the Board will only address entitlement to increased ratings for diabetes mellitus and eye disabilities, which have been perfected for appeal. 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is denied. The Veteran seeks a rating in excess of 20 percent for diabetes mellitus, which has been rated under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, the next higher rating, a 40 percent, is assigned if diabetes requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned if this condition requires insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice monthly visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is assigned if this condition requires 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. Id. The following notes apply to 38 C.F.R. § 4.119, Diagnostic Code 7913. Note (1): Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Note (2): When diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes. Id. Following VA examination in January 2017, a VA examiner determined that the Veteran’s diabetes mellitus does not require regulation of activities. Critically, VA treatment records show that the Veteran has been advised to exercise. See, e.g., VA treatment record (May 15, 2018). A rating in excess of 20 percent is not warranted because the medical evidence affirmatively establishes that the service-connected diabetes mellitus has not required regulation of activities. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (medical evidence is required to support the “regulation of activities” criterion). As noted above, as recently as May 2018, physical activity was being recommended and the January 2017 VA examiner specifically noted that regulation of activities was not warranted. Without a showing of “regulation of activities,” a rating in excess of 20 percent is not warranted because the criteria are conjunctive in nature. See id. In reaching the above conclusions, the Board has not overlooked the Veteran’s statements. In this regard, the Veteran is competent to report what he sees and feels. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, in this case, the medical evidence of record clearly shows that a clinician has never indicated that regulation of the Veteran’s activities is required on account of his diabetes mellitus. For these reasons, a rating in excess of 20 percent for diabetes mellitus is not warranted. 2. Entitlement to an initial compensable rating for service-connected eye disabilities is denied. The Veteran’s eye disabilities have been rated noncompensably disabling under Diagnostic Codes 6006-6066. For the reasons discussed below, the Board concludes that a higher rating is not warranted. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. General Rating Formula for Diseases of the Eye The Board notes that the General Rating Formula for Diseases of the Eye instructs to evaluate a condition based on visual impairment or for incapacitating episodes, whichever results in a higher evaluation. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Incapacitating Episodes Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, DCs 6061-6091. Here, the Veteran does not contend and the evidence does not suggest that his service-connected eye disabilities have been productive of incapacitating episodes as defined by the rating criteria. In fact, the January 2017 VA examination affirmatively states that his service-connected eye disorder has not been productive of incapacitating episodes. Accordingly, a higher rating is not warranted on the basis of incapacitating episodes. Visual Impairment: Generally The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75 (a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. Id. at (b). Examinations of visual field or muscle function will be conducted only when medically indicated. Id. Visual Impairment: Muscle Function As to muscle function, the Veteran does not contend and the evidence does not suggest that his eye disorder has been productive of muscle dysfunction. In fact, the January 2017 VA examination affirmatively states that his service-connected eye disorder has not been productive of muscle dysfunction, to include diplopia. Accordingly, a higher rating is not warranted on the basis of muscle function. Visual Impairment: Visual Acuity As to visual acuity, evaluations are based on corrected distance vision with central fixation. 38 C.F.R. § 4.76 (b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. The rater will first locate the step that matches the visual acuity of the poorer eye. Within that step, the rater will then locate the subsection that matches the visual acuity of the better eye, which will produce the corresponding rating. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76 (c). Here, the January 2017 VA examination report shows that the Veteran’s visual acuity is 20/40 or better in both eyes. Applying these measurements to the table for Impairment of Central Visual Acuity, visual acuity is consistent with a noncompensable rating. The Board acknowledges the Veteran’s report of blurry vision; indeed, bilateral uncorrected distance and near vision are 20/70 and 20/200, respectively. See VA examination (January 2017). However, as visual acuity is evaluated on the basis of corrected distance, an increased rating for visual acuity is not warranted. Visual Impairment: Vision Field Evaluation of visual field is based on the remaining field of vision in each eye. The examiner must record the remaining visual field of at least 16 meridians 22½ degrees apart for each eye, even though only the visual field at eight principal meridians 45 degrees apart will be used for rating purposes. Id. The table of Ratings for Impairment of Visual Fields provides ratings for visual field loss. The first half of the table provides ratings based on loss of an entire half of field of vision in an eye. The second half of the table provides ratings based on the average concentric contraction of the visual field of each eye. To calculate average concentric contraction, the rater should add the remaining visual field (in degrees) at each of eight principal meridians 45 degrees apart and divide the sum by eight. 38 C.F.R. § 4.77 (b). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, separately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity), and combine them under the provisions of § 4.25. 38 C.F.R. § 4.77 (c). Here, visual field testing performed on VA examination in January 2017 shows no visual defects, contraction of visual field, loss of visual field, or scotoma. As such, none of the criteria for a compensable rating of the visual field impairment have been met. See 38 C.F.R. § 4.79, Diagnostic Code 6080. Visual Impairment: Overall As discussed above, the evidence of record does not support an initial compensable rating for the service-connected eye disabilities on the bases of visual impairment or incapacitating episodes. Accordingly, an initial compensable rating for the service-connected eye disabilities is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel