Citation Nr: 1808696 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 05-31 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to specially adapted housing. 3. Entitlement to a special home adaptation grant. ORDER A disability rating in excess of 20 percent for diabetes mellitus is denied. Specially adapted housing is granted. A special home adaption grant is denied. FINDINGS OF FACT 1. For the entire period, the Veteran's diabetes has been manifested by the need for insulin and a restricted diet, but has not been manifested by the need for regulation of activities. 2. The Veteran has a permanent and total service-connected disability due to the loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2017). 2. The criteria for specially adapted housing are met. 38 U.S.C.A. §§ 2101(a), 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.102, 3.159, 3.809 (2017). 3. The criteria for a special home adaptation grant have not been met. 38 U.S.C.A. §§ 2101(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.809a (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from November 1967 to November 1970, and from April 1978 to October 1988. He has been awarded the Combat Infantryman Badge and the Purple Heart. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2005 rating decision of the RO in Columbia, South Carolina on behalf of the RO in Montgomery Alabama, and from a December 2007 rating decision of the RO in Montgomery, Alabama. The Veteran requested a Board hearing but cancelled his request in writing in April 2017. The Board has remanded these issues for additional evidentiary development in November 2009, September 2016, and November 2017. The appeal has since been returned to the Board for further appellate action. In November 2009, the Board also granted service connection for erectile dysfunction and lower extremity neuropathy. The Board's decision with respect to those claims is final. See 38 C.F.R. § 20.1100 (2017). In a separate decision in November 2009, the Board remanded a claim for medical expense reimbursement. That appeal remains in remand status and has not been recertified to the Board. As it arises from a different agency of original jurisdiction, it will be the subject of a separate decision upon return to the Board. The Veteran is in receipt of a total disability rating based on individual unemployability due to service connected disabilities (TDIU) since February 19, 1991. Therefore, the current appeal, which arises from a claim received on October 7, 2004, does not encompass a TDIU issue. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus. In a November 2001 rating decision, the RO granted service connection for diabetes mellitus, assigned an initial disability rating of 10 percent under Diagnostic Code 7913, and assigned an effective date of June 1, 2001. The current appeal arises from an increased rating claim received at the RO on October 7, 2004. Under Diagnostic Code 7913, diabetes mellitus is rated at 100 percent where it 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. A rating of 60 percent is available where diabetes requires one or more daily injection of 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 rating of 40 percent is available where diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities. A rating of 20 percent is available where diabetes requires one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A rating of 10 percent is available if diabetes is manageable by restricted diet only. 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. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The report of a November 2004 VA Diabetes Examination reveals that the Veteran was first placed on insulin in December 2003. There was no history of ketoacidosis or hypoglycemia. He had not been hospitalized for either condition. According to the examiner, "His activities are regulated because he is on insulin." The report of a March 2007 VA Examination reveals the Veteran's report of monthly or less often visits to a diabetic care provider, and no hospitalizations for hypoglycemic reactions or ketoacidosis. While he was taking insulin and on a special diet, he was not restricted in the ability to perform strenuous activities. The report of a May 2010 VA Examination reveals the Veteran's report that the Veteran was using the American Diabetes Association diet and was taking insulin. He was visiting a diabetic care provider every 3 months. Activities were not restricted to prevent hypoglycemia as he denied having hypoglycemia in the "past few." The Veteran was not restricted in the ability to perform strenuous activities. There were no episodes of hypoglycemia reactions or ketoacidosis. He had been to the Emergency Department a few times for elevated blood sugars, but had no ketoacidosis. The report of a July 2012 VA Examination reveals the Veteran diabetes was managed by restricted diet and insulin, but the Veteran did not require regulation of activities as part of the medical management of diabetes mellitus. Visits to his diabetic care provider were less than 2 times per month for episodes of ketoacidosis or hypoglycemic reactions. There were no hospitalizations for these conditions. The Veteran did not have progressive unintentional weight loss or strength. The examiner found that the Veteran's diabetes mellitus and complications did not impact his ability to work. After a review of all of the evidence, the Board finds that a rating in excess of 20 percent for diabetes mellitus is not warranted. The Veteran has, since December 2003, required insulin, and he has been advised to follow the American Diabetes Association special diet to control his diabetes. The Board finds that, for the entire period, the Veteran's diabetes mellitus was not manifested by the necessity of regulation of activities for control. In so finding, the Board acknowledges the statement of his examiner in November 2004 that his activities are regulated because he is on insulin. It is unclear what the examiner actually meant by this. The Board observes that regulation of activities does not have a precise medical definition. However, it is defined in the rating schedule as the avoidance of strenuous occupational and recreational activities. Contrary to this definition, the evidence appears to show that the Veteran was encouraged to increase his activities. The Veteran testified at an RO hearing that he was supposed to walk, but he could not do so because of his neuropathy. An August 24, 2004, VA Primary Care Note, very near the time of the examination, reveals that the Veteran was counseled to increase his physical activity. The Veteran has generally been counseled to exercise to lose weight. Therefore, whatever was intended by the November 2004 examiner's statement, the Board finds that a preponderance of the evidence demonstrates that, at no time was it necessary for him to avoid strenuous occupational and recreational activities to control his diabetes mellitus. Regulation of activities is required for the 40 percent rating. Medical evidence is required to establish that occupational and recreational activities have been restricted under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 365 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996)). As the medical evidence does not substantiate this element of the 40 percent rating, the Board finds that the criteria for a 40 percent rating have not been met. Moreover, the United States Court of Appeals for Veterans Claims (Veterans Court) held in Camacho, supra, that, in light of the conjunctive "and" in the criteria for a 40 percent disability rating under Diagnostic Code 7913, all criteria must be met to establish entitlement to a 40 percent rating. Citing Watson v. Dep't of the Navy, 262 F.3d 1292, 1299 (Fed. Cir. 2001); Heuer v. Brown, 7 Vet. App. 379, 385 (1995); Malone v. Gober, 10 Vet. App. 539 (1997). The Veterans Court explained that, given the clearly conjunctive structure of the language used in specifying the criteria for a 40 percent disability rating under Diagnostic Code 7913, 38 C.F.R. § 4.21 (it is not expected that all cases will show all criteria) has no application. The Veterans Court further reasoned that, if taking insulin and having a restricted diet were sufficient to support a 40 percent disability rating without restriction of activities, then there would be no reason for insulin and restricted diet to be one of the two ways to qualify for a 20 percent disability rating. This would render part of Diagnostic Code 7913 meaningless. Citing Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir. 2000) ("Canons of construction... require us to give effect to the clear language of a [regulation] and avoid rendering any portions meaningless or superfluous"). Service connection is separately in effect for diabetic complications of peripheral neuropathy and impotence. The Veteran is receiving special monthly compensation for loss of use of a creative organ. Service connection is also in effect for hypertension; however, this apparently is unrelated to his diabetes mellitus. There are no other compensable diabetic complications. In sum, the Board finds that, during the entire appeal period, the requirement of regulation of activities has not been met. In light of this finding, the Board concludes that a disability rating in excess of 20 percent for the service-connected diabetes is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his/her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to specially adapted housing. Entitlement to a special home adaptation grant. Specially adapted housing is available to a veteran who has a permanent and total service-connected disability due to: (1) the loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; or (3) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury, or with loss of use of one upper extremity, which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair. 38 U.S.C.A. § 2101(a); 38 C.F.R. § 3.809. The term "preclude locomotion" means the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809 (c) If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if he/she has compensation based on permanent and total service-connected disability that: includes the anatomical loss or loss of use of both hands, or is due to blindness in both eyes with 5/200 visual acuity or less, or deep partial thickness burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk, or full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk, or residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.809a(b). The assistance referred to in this section will not be available to any veteran more than once. 38 C.F.R. § 3.809a(a). Neurological Notes from July 2006 to September 2010 reveal the Veteran was described as having a chronic spastic-ataxic gait. A July 18, 2006, note reveals he was able to walk 42 feet with a quad cane before he started to hold onto the rail. His gait was ataxic and uncoordinated. A March 2, 2011, VA Social Work Note reveals the Veteran is dependent in activities of daily living including walking. A September 12, 2011, VA Aid and Attendance Examination shows that the Veteran was unable to walk more than a few feet due to poor propulsion. He had a tendency to fall easily and needed a walker for support. A concurrent neurological examination found that he was confined to a scooter and needed help to stand and walk. He uses a walker at home to take a few steps only. A March 1, 2012, Wheelchair Clinic Evaluation notes that he was ambulating only very short distances with the aid of a walker. He had a powered wheelchair. He could not walk household or community distances without appropriate assistive devices (VBMS record 11/30/2017 (Tuscaloosa) at 589). The report of a July 2012 VA Aid and Attendance Examination reveals the Veteran used a cane inside the house, and an electric wheelchair for longer distances outside. He experienced constant imbalance which affected his ability to ambulate. He had lack of coordination of his lower extremities and staggering steps due to diabetic peripheral neuropathy and knee arthritis. A July 26, 2017, VA Primary Care Note reveals the Veteran's report that he feels unsteady when walking (VBMS record 11/30/2017 (Birmingham) at 24). A September 26, 2017, Physical Medicine Rehabilitation Note reveals the Veteran was using a motorized wheelchair for mobility and was able to ambulate only short distances without assistance and had an unsteady gait (VBMS record 11/30/2017 (Birmingham) at 15). After a review of all of the evidence, the Board finds that, although the Veteran has not lost the use of his lower extremities entirely, he has effectively lost the use of them without the assistance of a cane, a walker, and a wheelchair. Indeed, a June 5, 2002, Clinical Note, prior to the period on appeal, reveals the Veteran needed a wheelchair, cane, or walker to help with mobility at that time. A July 6, 1999, Clinical Note reveals he was walking with a cane at that time. He also has a history of falls. Accordingly, the Board concludes that the criteria for specially adapted housing have been met for the entire period. As special home adaption grant specifies that the criteria for specially adapted housing must not be met, the Board finds that a special home adaptation grant is not warranted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD L. Cramp, Counsel Copy mailed to: The American Legion Department of Veterans Affairs