Citation Nr: 1818655 Decision Date: 03/29/18 Archive Date: 04/05/18 DOCKET NO. 14-05 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus type II with erectile dysfunction. 2. Entitlement to an increased rating in excess of 20 percent for diabetic peripheral neuropathy, right lower extremity. 3. Entitlement to an increased rating in excess of 20 percent for diabetic peripheral neuropathy, left lower extremity. 4. Entitlement to an increased rating in excess of 10 percent for diabetic peripheral neuropathy, left upper extremity. 5. Entitlement to an increased rating in excess of 10 percent for diabetic peripheral neuropathy of the right upper extremity. 6. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Oregon Department of Veterans Affairs ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from January 1966 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2012 and January 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran initially requested a Board hearing in his February 2014 Form 9. However, he later withdrew this hearing request in February 2017 correspondence. The issues of entitlement to increased ratings for diabetic peripheral neuropathy of the lower and upper extremities and service connection for sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the rating period, the Veteran's diabetes mellitus has required insulin, an oral hypoglycemic agent and restricted diet; regulation of activities due to diabetes mellitus has not been demonstrated. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Increased Rating for Diabetes Mellitus Disability evaluations (ratings) are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for the disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2008). In other cases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. An August 2004 rating decision granted service connection for diabetes mellitus type II with peripheral neuropathy of the feet and erectile dysfunction. A 20 percent rating was assigned from December 2003. A May 2005 rating decision granted an earlier effective date for service connection from December 2002. A claim for an increased rating for diabetes mellitus was received in January 2011. A 20 percent rating is warranted for diabetes mellitus that requires insulin and restricted diet; or oral hypoglycemic agent and restricted diet. For an increase to 40 percent, the evidence must show the required use of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted in cases 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 rating requires more than one daily injection of insulin, restricted diet, and regulation of 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, DC 7913. "Regulation of activities" has been defined as the situation where a veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities" as used by VA in 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Note (1), following the rating criteria, indicates that compensable complications from diabetes mellitus are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under DC 7913. In a May 2012 statement, the Veteran noted that he was taking Metformin and insulin. He noted that he had been directed not to do any heavy lifting or exert himself. The Veteran had a VA examination in September 2011. The examination reflects a history of diabetes since 1989. The examiner noted that the Veteran's treatment included a prescribed oral hypoglycemic agent and a prescribed insulin injection more than once per day. The Veteran did not require regulation of activities for medical management of diabetes. The Veteran visited a diabetic care provider less than 2 times a month. He had not had any episodes of ketoacidosis or hypoglycemia requiring hospitalization in the past 12 months. He did not have progressive unintentional weight loss or progressive weight loss attributable to diabetes mellitus. The examiner noted that the recognized complications of diabetes mellitus included diabetic peripheral neuropathy, erectile dysfunction, and a cardiac condition. A December 2013 VA outpatient treatment record noted that the Veteran was encouraged to exercise. A VA outpatient treatment record dated in February 2014 shows that the Veteran was seen for follow up of diabetes. He was diagnosed with diabetes mellitus, worsened control. He was advised to lose weight. The Veteran had a VA examination in March 2015. The report noted that the Veteran's diabetes mellitus treatment included a prescribed oral hypoglycemic agent and insulin. He did not require regulation of activities for management of diabetes mellitus. The Veteran had less than 2 visits a month to a diabetic care provider for episodes of ketoacidosis or hypoglycemia. He had not been hospitalized for ketoacidosis or hypoglycemia in the previous 12 months. The Veteran did not have progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. His recognized complications of diabetes mellitus included diabetic peripheral neuropathy, diabetic nephropathy or renal dysfunction, erectile dysfunction, and a cardiac condition. The examiner opined that diabetes mellitus does not impact the Veteran's ability to work. The examiner noted that the Veteran last worked in 2006, when he sustained burns at his job at a waste management company. The Board finds that a rating in excess of 20 percent is not warranted for diabetes mellitus, type II. The evidence of record shows that the Veteran requires insulin and a restricted diet. The evidence of record does not reflect that his diabetes mellitus has required insulin, a restricted diet, and the regulation of activities. The VA examination reports and VA outpatient medical records of record do not provide any notations or findings indicating that the Veteran has been instructed to restrict his activities by avoiding strenuous occupational and recreational activities due to diabetes mellitus. The Board finds that the preponderance of the evidence is against a rating in excess of the 20 percent rating assigned for diabetes mellitus. As explained above, the need for a restricted diet is shown throughout the period of the claim and insulin is also required to manage the Veteran's diabetes. As to the regulation of activities, the Board finds that the preponderance of the evidence shows that increased activity was encouraged. As noted above, however, "regulation of activities" as used by Diagnostic Code 7913 is defined as a veteran having been prescribed or advised to avoid strenuous occupational and recreational activities. See 61 Fed. Reg. 20,440, 20,446 (May 7, 1996). The recommendations of exercise during the pendency of the claim weigh against the Veteran's claim for an increased rating. Thus, the evidence does not suggest that the Veteran was ever "prescribed or advised to avoid strenuous occupational and recreational activities" as is required for the regulation of activities needed for a 40 percent rating under Diagnostic Code 7913. Moreover, there is no indication of ketoacidosis or hypoglycemic episodes requiring hospitalization or twice a month visits to a diabetic care provider. For these reasons, there is no basis upon which to assign an initial rating in excess of 20 percent for diabetes mellitus under Diagnostic Code 7913. The Veteran's service-connected diabetes mellitus includes several complications, including diabetic peripheral neuropathy, erectile dysfunction, and a heart condition. Separate ratings have been assigned for peripheral neuropathy of the upper and lower extremities and a heart condition. A non-compensable rating is in effect for erectile dysfunction. The Veteran is in receipt of special monthly compensation under 38 U.S.C. § 1114 (k) for loss of use of a creative organ. In order for the Veteran to receive a compensable rating, DC 7522 requires physical deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b. Based on the evidence of record, the Board finds that a compensable evaluation for erectile dysfunction is not warranted. The September 2011 and November 2015 examinations of the reproductive system do not show findings of physical deformity of the penis with loss of erectile power. Therefore, the criteria for a separate compensable evaluation for erectile dysfunction as a complication of diabetes mellitus are not met. The Board notes that the March 2015 VA diabetes examination indicated that the Veteran had diabetic nephropathy or renal dysfunction as a complication of diabetes. However, the specific March 2015 VA kidney examination conducted as a result of the finding in the diabetes examination went into more detail regarding the Veteran's kidney condition, and the examiner determined that the chronic kidney disease was not secondary to diabetes mellitus because the Veteran had normal microalbumin and normal microalbumen/creatinine ratio. Therefore, the Board finds that a separate rating for diabetic nephropathy is not warranted. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The September 2011 VA diabetes examination indicated that the Veteran worked as an aircraft mechanic and began working in the wastewater field in 2006 after he sustained burns of the left trunk area from an acetylene torch. The Veteran reported he had not worked since then because he could not be around certain chemicals due to a history of burns. Because the evidence shows that the Veteran is unemployed due to his nonservice-connected burns, the issue of TDIU need not be considered further. ORDER A rating in excess of 20 percent for diabetes mellitus is denied. REMAND A March 2015 VA examination for peripheral neuropathy reflects that the Veteran reported that he had an EMG by a private physician which showed a worsening of his peripheral neuropathy. A remand is warranted to obtain outstanding private medical records related to peripheral neuropathy. The Veteran asserts that sleep apnea is caused or aggravated by his service-connected disabilities. In a March 2015 statement, the Veteran stated that sleep apnea and diabetes are related because diabetes mellitus affects his weight. In July 2015, the Veteran had a VA examination for sleep apnea. The examiner opined that sleep apnea is not caused by, nor a secondary manifestation of, PTSD or diabetes mellitus. The examiner noted that obesity is the most important risk factor for obstructive sleep apnea. The July 2015 medical opinion did not address whether sleep apnea is aggravated (worsened) by any of the service-connected disabilities. See 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, it is necessary to obtain an addendum opinion to address aggravation. Accordingly, the case is REMANDED for the following action: 1. Obtain appropriate authorization from the Veteran for his private medical records concerning peripheral neuropathy. All attempts to obtain the records should be documented in the claims file. 2. Return the claims file to the VA examiner who conducted the July 2015 sleep apnea examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the July 2015 VA examiner is not available, the claims file should be provided to an appropriate medical professional for the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should address the following: a. The examiner is asked to provide an opinion addressing whether it at least as likely as not (50 percent or greater likelihood) that the Veteran's service-connected disabilities aggravated (worsened) his obstructive sleep apnea? The Veteran's service-connected disabilities include PTSD, coronary artery disease, diabetes mellitus type II, peripheral neuropathy of the upper and lower extremities, hypertension, and residuals of left distal fibula fracture. b. In light of the examiner's prior opinion that the Veteran's obesity is the major factor for sleep apnea, the examiner should address the relationship between diabetes mellitus, obesity, and sleep apnea. The examiner should consider the article submitted in November 2015, concerning the relationship of PTSD and sleep disturbances. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 3. After completion of the requested actions, reajudicate the claims. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The case should then be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs