Citation Nr: 1808426 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 15-35 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for type II diabetes mellitus with non-proliferative bilateral retinopathy. 2. Entitlement to special monthly compensation based on loss of use of a creative organ. (The other service connection and increased rating issues as well as entitlement to a total disability rating based on individual unemployability are subject to another Board decision under a different docket number.) REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active service from July 1984 to May 2008, with six months and 27 days of prior active service. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for type II diabetes mellitus effective June 1, 2008, and assigned a 20 percent disability rating. In July 2015, the Veteran testified at a Travel Board hearing held at the RO before another Veterans Law Judge (Judge Kessel) on the other issues on appeal. In January 2016, the Board remanded the issue of entitlement to an increased rating for type II diabetes mellitus for a Travel Board hearing. In July 2016, the Veteran testified at a Travel Board hearing held at the RO before the undersigned Veterans Law Judge (Judge Lane), and a transcript of that hearing has been associated with the electronic record. The Board finds there has been substantial compliance with the directives of its January 2016 remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) As the hearing before Judge Lane only pertained to an increased rating for type II diabetes mellitus and as the Veteran did not have a hearing before Judge Kessel on that issue, the issue of entitlement to an increased rating for type II diabetes mellitus is subject to a separate decision from the decision on the issues that were discussed at Judge Kessel's hearing. In July 2017 rating decision, the RO granted service connection for non-proliferative bilateral retinopathy effective June 1, 2008, and denied a rating in excess of 20 percent for type II diabetes mellitus with non-proliferative bilateral retinopathy. As explained below, the medical evidence shows that the Veteran has erectile dysfunction as secondary to type II diabetes mellitus. The Board observes that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the issue of entitlement to special monthly compensation based on loss of use of a creative organ is before the Board at this time. In light of the decision below, the Veteran is not prejudiced by the Board's consideration of the issue of entitlement to special monthly compensation based on loss of use of a creative organ. Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the above, the issues are as stated on the first page of this decision. The Board observes that the Veteran's VA vocational rehabilitation file was received following the last adjudication by the RO in the August 2017 supplemental statement of the case. The Board has reviewed these records and observes that they are not pertinent to the issues of an increased rating for type II diabetes mellitus with non-proliferative bilateral retinopathy and entitlement to special monthly compensation based on loss of use of a creative organ addressed in the decision below. FINDINGS OF FACT 1. The weight of evidence is against a finding that the type II diabetes mellitus has been manifested by regulation of activities since June 1, 2008. 2. The evidence is in equipoise as to whether the erectile dysfunction was caused by the service-connected type II diabetes mellitus. 3. The Veteran's erectile dysfunction results in loss of use of a creative organ. CONCLUSIONS OF LAW 1. Since June 1, 2008, the type II diabetes mellitus has not met the criteria for an evaluation in excess of 20 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102. 3.159, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2017). 2. Resolving doubt in the Veteran's favor, the criteria for special monthly compensation based on loss of use of a creative organ have been met. 38 U.S.C. §§ 1114(k), 5107 (2012); 38 C.F.R. §§ 3.102, 3.350(a)(1) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits in general are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by letters dated in March, August, and November 2010; July 2011; April, August, and November 2013; and March 2014. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott, 789 F.3d at 1381 (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Governing law and regulations Where the issues involve the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case respect to the Veteran's claim for an increased initial rating, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). A 20 percent disability rating is warranted for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent evaluation is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent disability rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hyperglycemic 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 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Note (1) states that compensable complications of diabetes should be rated separately unless they are part of the criteria used to support a 100 percent disability rating. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2017). In Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007), the United States Court of Appeals for Veterans Claims (the Court) held that for a 40 percent disability rating under Diagnostic Code 7913, restriction of activities means that a veteran is required to avoid strenuous occupational and recreational activities. The Court further held that medical evidence is necessary to show a restriction of activities. Id. at 364. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Special monthly compensation is warranted if a veteran has suffered either the anatomical loss or the loss of use of one or more creative organs as the result of service-connected disability. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). The VA Adjudication Procedure Manual specifies that an award for special monthly compensation based on loss of use of a creative organ in a male veteran is to be established if loss of erectile power is shown. The loss of erectile power must be secondary to a service-connected disease process. See M21-1, Part IV, Subpart ii, Chapter 2, Section H, Topic 4. Analysis Entitlement to an initial disability rating in excess of 20 percent for type II diabetes mellitus with non-proliferative bilateral retinopathy In a July 2008 rating decision, a RO granted service connection for type II diabetes mellitus effective June 1, 2008, and assigned a 20 percent disability rating. In its January 2016 decision, the Board determined that the Veteran filed a timely notice of disagreement with the initial assignment of a 20 percent disability rating in the July 2008 rating decision. In July 2017 rating decision, the RO granted service connection for non-proliferative bilateral retinopathy effective June 1, 2008, and denied a rating in excess of 20 percent for type II diabetes mellitus with non-proliferative bilateral retinopathy. There is conflicting medical evidence on whether the Veteran's diabetes mellitus causes regulation of activities. An April 2008 VA examination report reflects that the examiner stated that the Veteran is restricted in ability to perform strenuous activities. The examiner indicated that field-training activities need to be limited to avoid blood sugar drops. A July 2010 VA examination report reveals that the examiner stated that the Veteran does not have to regulate activities due to diabetes mellitus or hypoglycemia. Similarly, April 2014 and April 2017 VA examination reports show that the examiners stated that the Veteran does not require regulation of activities as part of his medical management of diabetes mellitus. At the July 2016 hearing, the Veteran testified that a doctor in 2009 regulated his activities due to fluid in the knee from diabetes mellitus not being properly controlled. A lay person's account of what a physician purportedly said, filtered as it is through a lay person's sensibilities, is not persuasive medical evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Private treatment records reflect that the Veteran's diabetes mellitus was described in 2008 as not being well controlled. These records, however, do not include medical evidence specifically indicating that the Veteran is to avoid strenuous occupational and recreational activities The April 2008 VA examination report predates the effective date of the grant of service connection, June 1, 2008, whereas the three VA examinations showing no regulation of activities were conducted during the appeal period. The three examination reports are also supported by the Veteran's own testimony. The Veteran testified that while he no longer plays basketball or softball or mows his lawn, he still uses a treadmill two to three times a week. For these reasons, the Board places greater weight on the VA examination reports from 2010 to 2017 than on the April 2008 VA examination report. As for the non-proliferative bilateral retinopathy, the April 2008, July 2010, and April 2017 VA examination reports reflect that there was no visual field loss or incapacitating episodes. These examination reports reveal that corrected distant vision and near vision were 20/40 or better bilaterally. Therefore, a separate compensable rating for bilateral retinopathy is not warranted. 38 C.F.R. § 4.79, Diagnostic Code 6006 (2017); 38 C.F.R. § 4.84a, Diagnostic Code 6006 (2008). With regard to erectile dysfunction, the medical evidence shows that the Veteran has the disorder and there is conflicting medical evidence on whether it is a complication of diabetes mellitus. The July 2010 VA examiner stated that the erectile dysfunction was not caused by diabetes mellitus and that the Veteran had low testosterone. The April 2017 VA examiner noted that the erectile dysfunction is a complication of diabetes mellitus. The evidence is in equipoise as to whether the erectile dysfunction was caused by the service-connected type II diabetes mellitus. There is, however, no medical evidence of a penile deformity. The examination of the penis was normal in July 2010. Thus, a separate compensable rating for erectile dysfunction is not warranted. 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2017). For the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against a finding that the type II diabetes mellitus has been manifested by regulation of activities since June 1, 2008. Therefore, the preponderance of the evidence is against the claim, and it is denied. Entitlement to special monthly compensation based on loss of use of a creative organ The Veteran's erectile dysfunction results in loss of use of a creative organ. Therefore, the criteria for special monthly compensation based on loss of use of a creative organ have been met for the entirety of the period the claim for a higher evaluation for diabetes mellitus has been pending 38 U.S.C. §§ 1114(k), 5107; 38 C.F.R. §§ 3.102, 3.350(a)(1). ORDER Entitlement to an initial disability rating in excess of 20 percent for type II diabetes mellitus with non-proliferative bilateral retinopathy is denied. Entitlement to special monthly compensation based on loss of use of a creative organ is granted for the entirety of the appeal period, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs