Citation Nr: 18161322 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 15-16 334 DATE: December 31, 2018 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with diabetic dermopathy and erectile dysfunction, is denied. FINDING OF FACT Throughout the appeal period, the Veteran's diabetes mellitus has been managed by the use of oral hypoglycemic agents, insulin, and a restricted diet, but it has not medically required regulation of his activities. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with diabetic dermopathy and erectile dysfunction, have not been met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1965 to August 1967. This appeal to the Board of Veteran’s Appeals (Board) arose from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has perfected a timely appeal. See July 2012 Notice of Disagreement; March 2015 Statement of the Case (SOC); May 2015 Substantive Appeal (VA Form 9). The Board notes that the Veteran’s claims regarding entitlement to service connection for peripheral neuropathy of the upper and lower extremities were granted during the pendency of the appeal in a November 2017 rating decision. Where a claim for service connection is granted during the pendency of an appeal, a second NOD must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability. Granthan v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). To date, the Veteran has not filed a subsequent NOD with regard to the issue of entitlement to service connection for peripheral neuropathy of the upper and lower extremities. Therefore, these claims are not before the Board for consideration. The Board should also acknowledge that there is a document dated June 2018, which indicates that the Veteran wanted to withdraw all of his issues on appeal. However, in the appellate brief dated December 2018, and submitted subsequent to the June 2018 document, the Veteran’s representative has asked the Board to review and consider the issues on appeal. Thus, the Board will still consider the claim of entitlement to a rating in excess of 20 percent for diabetes mellitus, type II. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II. The Veteran is seeking a higher rating for his service-connected diabetes mellitus, type II, currently rated at 20 percent disabling effective May 27, 2010. Under Diagnostic Code 7913, a 40 percent evaluation is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent evaluation is warranted for diabetes mellitus requiring 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 evaluation is warranted for diabetes mellitus requiring 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. Compensable complications of diabetes are to be evaluated 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. See Note (1) to 38 C.F.R. § 4.119, Diagnostic Code 7913. The Court has held that, in order to demonstrate a regulation of activities, "medical evidence" is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase "regulation of activities" means "avoidance of strenuous occupational and recreational activities." Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.11, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent rating)). "Successive" rating criteria in a diagnostic code is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, a Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). For example, Diagnostic Code 7913 is successive in nature because each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent; the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Camacho, 21 Vet. App. at 366. Turning now to the evidence of the record, in the September 2010 VA examination, the medical history noted that the Veteran was diagnosed with diabetes mellitus a couple of years ago at the age of 64 and receives care from a non-VA physician. For treatment, the Veteran takes several oral hypoglycemic agents and bedtime insulin. He has no history of diabetic ketoacidosis. He has not had any hospitalizations for control of blood sugar. When he notices that his blood sugar is low, he eats candy or drinks orange juice. The Veteran is physically active. He has no restriction of activities due to his diabetes. He urinates just once or twice at nighttime. He has no history of kidney failure, heart problems or shortness of breath or chest pains. The examiner noted that the Veteran has a fair control of his diabetes with medications. In an October 2016 VA examination, it was noted that the Veteran treats his diabetes with oral hypoglycemic agents and insulin. The Veteran does not require regulation of activities as part of his medical management. The Veteran visits his care provider for episodes of ketoacidosis and hypoglycemia less than two times per month. He has not had any hospitalizations for episodes of ketoacidosis or hypoglycemic reactions. The Veteran has not had any progressive unintentional weight loss or loss of strength due to his condition. The Veteran was noted as having diabetic peripheral neuropathy, erectile dysfunction, and diabetic dermopathy as complications of his diabetes. In VA treatment records from September 2010 to December 2011, and October 2012 to November 2017, the Veteran has been referred to a dietitian regarding his nutrition. It was recommended that the Veteran continues diet, medications, and exercise for control of blood pressure, lipids, and glucose, and to improve quality of life. The exercise screenings results were mild to moderate. It was noted that the Veteran walks and does yard work. After thorough consideration of the evidence, the Board finds that the Veteran’s diabetes does not warrant an evaluation rating in excess of 20 percent. While the Veteran’s condition is controlled by oral hypoglycemic agents, insulin, and diet, his condition does not require regulation of his activities. The evidence indicates that the Veteran has been educated about exercise and recommended to continue to exercise to control his condition. The medical evidence notes that, in fact, the Veteran is physically active, engaging in activities such as walking and yard work. The Board acknowledges that the Veteran believes he is entitled to an evaluation in excess of 20 percent for his diabetes. However, in order for the Veteran to receive the next higher rating, 40 percent, it is required that regulation of activities is necessary for treatment. As mentioned before, the medical evidence shows that the Veteran is physically active and is encouraged to exercise; thus, he does not require regulation of his activities for treatment. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for his service-connected diabetes mellitus, type II. Pursuant to Note 1 under Diagnostic Code 7913, the Board must assign separate ratings for any compensable complications of the Veteran's service-connected diabetes mellitus, type II. All noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119; Diagnostic Code 7913, Note (1). Here, the Board notes that the Veteran is already separately service-connected for peripheral neuropathy of the bilateral upper and lower extremities and has been assigned compensable ratings for each. Those issues are not currently on appeal. The Board further notes that the Veteran has erectile dysfunction and diabetic dermopathy associated with his type II diabetes mellitus, which the RO found to be noncompensable. In this case, a separate compensable rating is not warranted for the Veteran's erectile dysfunction associated with diabetes mellitus. In order to receive a compensable rating for erectile dysfunction, physical deformity of the penis with loss of erectile power is required. 38 C.F.R. § 4.115b, Diagnostic Code 7522. Upon review of the evidence, the Veteran does not meet the criteria for a compensable percent rating. It is not in dispute that the Veteran has loss of erectile power. Regardless, in the present case, the evidence of record does not reveal any physical deformity of the Veteran's penis. The Veteran has not alleged, nor does the evidence show, that he has penile deformity. See October VA Examination. As such, there is no lay or medical support for a compensable disability rating for the Veteran's erectile dysfunction under Diagnostic Code 7522. Moreover, the Board notes that he is already in receipt of special monthly compensation for loss of use of a creative organ. Therefore, a separate compensable rating for erectile dysfunction is not warranted. For diabetic dermopathy, under Diagnostic Code 7806, a compensable rating, 10 percent, is warranted when at least 5 percent, but less than 20 percent of the entire body at least 5 percent, but less than 20 percent, of exposed areas is affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. Based on the evidence, the Veteran is not entitled to a compensable rating for diabetic dermopathy. According to the October 2016 VA examination, the Veteran’s skin condition covers less than five percent of his body, and is treated with moisturizer. He uses it 6 weeks or more, but it is not constant. Therefore, a separate compensable rating for diabetic dermopathy is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Syesa Middleton, Associate Counsel