Citation Nr: 19190896 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 16-10 652 DATE: December 3, 2019 ORDER Entitlement to an increased rating in excess of 20 percent for diabetes mellitus Type II with erectile dysfunction (ED) is denied. FINDING OF FACT Throughout the period on appeal, the weight of the medical evidence indicates that the Veteran’s diabetic symptoms have required insulin injections, oral medication and a restricted diet, but have not manifested in the requirement of regulation of activities for diabetes mellitus management. 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, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.14, 4.21, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to June 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board notes that jurisdiction currently rests with the Cheyenne, Wyoming RO. The Veteran initially requested a hearing by video conference. However, in May 2019, the Veteran indicated that he wished to withdraw his hearing request. Under 38 C.F.R. § 20.704 (e), a request for hearing may be withdrawn by an appellant at any time before the hearing. Therefore, the Board finds that the hearing request has been withdrawn and will proceed with appellate review. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus is denied. The Veteran contends that he is entitled to a higher rating for diabetes mellitus which is currently assigned a 20 percent disability rating pursuant to Diagnostic Code 7913. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under Diagnostic Code 7913, a 20 percent evaluation is warranted for diabetes mellitus requiring insulin and restricted diet; or, an 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 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 criteria for the progressively increasing ratings for diabetes are stated in the conjunctive rather than the disjunctive. As such, each level of increase in the rating requires additional criteria to those for the lower rating, which must also be met to warrant the increase. See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Therefore, all ratings in excess of 20 percent under Diagnostic Code 7913 require that there be a regulation of activities. “Regulation of activities” is defined for purposes of Diagnostic Code 7913 as the “avoidance of strenuous occupational and recreational activities.” As such, for there to be a regulation of activities, medical evidence must show that occupational and recreational activities have been restricted. Id. The Veteran’s VA treatment records confirm that he has been prescribed insulin and medications to manage his diabetes and that he has been given dietary and exercise advice related to his diabetes, all of which has previously been conceded by VA. See e.g. March 2016 Statement of the Case. However, there is no evidence of record that reflects that the Veteran has been instructed to avoid strenuous occupational and recreational activities or otherwise regulate his activities as contemplated by the relevant rating criteria. Relevant to the period on appeal, the Veteran was afforded a Compensation and Pension examination in June 2016. It was noted that the Veteran requires insulin for treatment of his diabetes but visits his diabetic care provider less than 2 times per month and that he had not been hospitalized for ketoacidosis in the past 12 months. The Veteran also declined a genitourinary examination but reported no anatomical penile deformity and specification of erectile dysfunction as a complication of diabetes mellitus. The examiner concluded that the Veteran does not require regulation of activities as part of medical management of diabetes. Here, there is no medical evidence that the Veteran has had to regulate his activities as defined by Camacho. Rather, the evidence indicates that the Veteran has been educated on the importance of diet and exercise and that he continues to rely on insulin and oral medication for the management of his diabetes. In addition, the VA examiner who conducted the June 2016 examination indicated that the Veteran did not require regulation of activities as part of the medical management of his diabetes mellitus. Such manifestations meet the criteria for a 20 percent rating under Diagnostic Code 7913, but no higher. The Board acknowledges that the Veteran has made statements such as, “due to effects of service-connected diabetes, I now have even more restrictions and limitations on my daily life functions/abilities as I am restricted to driving no more than 45 mph and no night driving effective by June 2016”. See Correspondence Received January 2018. However, the evidence of record reflects that the restrictions imposed on the Veteran’s driving are attributable to vision impairment and him being prescribed glasses in June 2016. See VA Treatment Records Received March 2019. Notably, the Veteran was previously denied service connection for eye condition in a December 2014 rating decision, and it therefore cannot be considered in assigning a schedular rating for diabetes mellitus. If the Veteran wishes to appeal that denial, he may do so in a separate appeal. Despite the Veteran’s assertions, the evidence does not reflect that the Veteran’s diabetes necessitates regulation of activities. Although the Board recognizes the Veteran’s statements that he feels that he has to limit his activities due to his diabetes, he has not been shown to possess the medical expertise or knowledge to address whether he is medically required to restrict strenuous occupational or physical activities to control his diabetes. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Because the criteria for all ratings in excess of 20 percent for diabetes mellitus require restriction of activities, the Board concludes that the Veteran does not meet the requirements for a rating in excess of 20 percent for the disability. The Board notes that the Veteran already receives special monthly compensation for loss of use of a creating organ as a result of his erectile dysfunction. The Board has additionally considered whether the Veteran is entitled a separate compensable rating for the ED that is associated with his diabetes. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The Board notes that there is no specific diagnostic criterion for ED. See generally 38 C.F.R. § 4.115b, Ratings of the Genitourinary System. When a Veteran is diagnosed with an unlisted disease, the condition must be rated under an analogous diagnostic code. See 38 C.F.R. §§ 4.20 and 4.27. Here, the Veteran’s ED has been evaluated by analogy under Diagnostic Code 7522, which represents an unlisted genitourinary disability evaluated by penis deformity with loss of erectile power. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. Diagnostic Code 7522 awards a 20 percent rating for deformity of the penis with loss of erectile power. This is the only schedular rating provided under this diagnostic code. However, in every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. After the review of the evidence, the Board does not find any indication or report of ED symptoms beyond the inability to maintain an erection for penetration and ejaculation without medication. No deformity with loss of erectile power, renal dysfunction, voiding dysfunction or scarring was noted in the record, a fact affirmed by the June 2016 VA examiner. Therefore, the Board finds that a separate 20 percent evaluation for the Veteran’s ED is not warranted in this case under Diagnostic Code 7522. Additionally, the Veteran has already been afforded separate respective ratings for his diabetic peripheral neuropathy. As such, the Veteran has been granted compensable ratings for these complications of his type II diabetes mellitus and, similarly to the eye condition discussed above, these conditions are not considered part of the diabetic process nor included with the evaluation for this condition. The record is not indicative of any other complications related to his diabetes. Overall, the Veteran has not been shown to meet the criteria for an increased evaluation under the rating criteria. Although the Veteran has been shown to require oral hypoglycemic agents, insulin, and a restricted diet, he does not require a regulation of activities, which is a necessary component for a higher evaluation. Nor does the evidence support any additional, separate compensable evaluations for complications of the service-connected diabetes mellitus. Accordingly, the Veteran is not entitled to an evaluation in excess of 20 percent for his diabetes mellitus. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.