Citation Nr: 20006701 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 16-05 785 DATE: January 27, 2020 ORDER Entitlement to an increased rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to special monthly compensation (SMC) based on aid and attendance is denied. FINDINGS OF FACT 1. The probative evidence of record shows that prior to the Veteran’s death, his service-connected diabetes mellitus was primarily managed by restricted diet. 2. The probative evidence of record shows that prior to the Veteran’s death, he was not in need of regular aid and attendance due to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.119, Diagnostic Codes 7913. 2. The criteria for special monthly compensation (SMC) based on aid and attendance have not been met. 38 U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United Stated Army from April 1969 to September 1973. The Veteran died in March 2017. The Appellant is the Veteran’s surviving spouse and a request for substitution was accepted by the Regional Office in May 2017. The claims were brought before the Board in March 2018 and were remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the Department of Veterans Affair (VA) Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2019). Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to Increased Rating: Diabetes Mellitus The Veteran’s diabetes mellitus was rated as 20 percent disabling under Diagnostic Code (DC) 7913 for Diabetes Mellitus. Under DC 7913, a 20 percent rating is provided when insulin and a restricted diet, or oral hypoglycemic agent and restricted diet are required to treat diabetes mellitus. A 40 percent rating is warranted when treatment of the disease requires the taking of insulin, a restricted diet, and regulation of activities. “Regulation of activities” is defined by Diagnostic Code 7913 as the “avoidance of strenuous occupational and recreational activities.” Competent medical evidence is required to establish “regulation of activities,” namely, avoidance of strenuous occupational and recreational activities, for a 40 percent rating under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). A 60 percent rating requires the taking of insulin, a 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. Lastly, a total schedular (100 percent) rating for diabetes mellitus 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119. In May 2012, the Veteran received a VA examination. The Veteran’s treatment was noted as being managed by restricted diet. The examiner noted that the Veteran’s condition required regulation of activities as part of his medical management, which was reported by the Veteran as restricting his physical activities due to experiencing lower blood sugar. The Veteran visited his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemic reactions. The Veteran had no episodes of ketoacidosis or hypoglycemia in the last 12 months. The Veteran had unintentional progressive weight loss of 20 percent attributable to his diabetes. He also had loss of strength. The Veteran was noted as not having diabetic peripheral neuropathy, diabetic nephropathy, and diabetic retinopathy. The Veteran also did not have any other conditions that were related to his diabetes. In November 2012, the Veteran received another VA examination. The Veteran did not require any treatment. The Veteran visited his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemic reactions. The Veteran had no episodes of ketoacidosis or hypoglycemia in the last 12 months. The Veteran had no progressive unintentional weight loss attributable to his condition. He did not have diabetic peripheral neuropathy, diabetic nephropathy, or diabetic retinopathy. The Veteran also did not have any other conditions that were related to his diabetes. The Board notes that VA treatment records show the Veteran’s diabetes was consistently noted as being well controlled with diet alone and without need for medication, to include in April 2011, March 2014, June 2015, and May 2016. None of the records noted the Veteran needed insulin, restricted diet, and regulation of activities. After review of the evidence of record, the Board finds that the Veteran’s diabetes did not warrant a rating in excess of 20 percent. The Veteran’s diabetes at no time showed he required insulin, a restricted diet, and regulation of activities. In fact, the Veteran’s diabetes mellitus was consistently noted as being well controlled with diet and no need for medication. While the Veteran did report limiting his activities for his condition, the Board notes it was minimal, and his records show it was not noted as being required for his treatment. Additionally, even considering the Veteran’s need to regulate activities, the evidence still did not show that he required insulin to manage his diabetes. Thus, a rating in excess of 20 percent was not warranted as the Veteran’s condition mainly required a restrictive diet with no medication. See 38 C.F.R. § 4.119, DC 7913. Regarding any additional conditions caused by Veteran’s diabetes, the Board notes that the Veteran was not diagnosed with any additional conditions that were noted as being caused or related to his diabetes. Specifically, regarding whether any diabetic peripheral neuropathy was present prior to the Veteran’s death, to include his complaints of left upper and lower extremity neuropathy symptoms, an opinion was obtained in March 2019. The examiner opined that the claimed condition was not related to the Veteran’s service-connected diabetes. The examiner rationalized that the Veteran’s complaints of neuropathic pain in his March 2008 examination were inconsistent with what the EMG and clinical records showed, which showed mild abnormality in the left upper extremity only. The examiner provided that while inconclusive, the finding is most consistent with medial nerve compression/carpal tunnel syndrome. The examiner noted that during a previous examination in February 2008, the Veteran did not complain of neuropathic pain and the Gabapentin prescribed then was for help with the Veteran’s sleep apnea. The examiner noted that his podiatry examination in 2008 showed the Veteran’s light touch and vibratory senses were intact in his toes and feet. The examiner further noted that peripheral neuropathy does present in a stocking glove pattern, generally affecting distal lower extremity then gradually moving up the extremities in a stocking pattern. The examiner noted that the unilateral pattern of neuropathy in the left upper and left lower extremities reported by the Veteran was inconsistent with diabetic neuropathy and progression. Further, there was no neurological abnormality found in the left lower extremity on EMG. The Board notes that at no time prior to the Veteran’s passing was he diagnosed with diabetic peripheral neuropathy. Therefore, consideration of a separate rating for diabetic neuropathy, or any other condition is not warranted. In light of the above, the Board concludes that a rating in excess of 20 percent is not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 200). 2. Entitlement to Special Monthly Compensation (SMC): Aid and Attendance The Appellant contends that prior to the Veteran’s death, he was entitled to special monthly compensation (SMC) based on the need for aid and attendance. SMC at the aid and attendance rate is payable when a Veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). A number of factors are to be accorded consideration in determining the need for regular aid and attendance, including: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 38 C.F.R. §§ 3.350 (b), 3.352(a). In April 2012, the Veteran’s VA physician submitted a statement. The physician stated that he was in need of a liver transplant and without one he would not survive. The physician further stated that after the transplant occurs, the Veteran would have a long recovery, which would require full time care and monitoring. In May 2012, a second VA physician treating the Veteran provided a statement. The physician stated that the Veteran was currently waiting for a liver transplant and was suffering from fluid in the abdomen and peripheral edema, which were difficult to control. The physician further stated that the Veteran was chronically fatigued and weak from his cirrhosis and liver cancer. The physician provided that once the Veteran received the transplant, he would have a long healing process that would require full time care, which would cause physical, mental, and financial stress. In November 2012, the Veteran received a VA examination. The Veteran’s physical examination was normal. It was noted that he was not permanently bedridden, hospitalized, and could travel beyond his current domicile. It was further noted that he traveled to the examination alone and spent his days watching television, cooking, and taking naps. The Veteran was noted as having imbalance that occasionally affected his ability to ambulate. The Veteran had no need for an orthopedic or prosthetic appliance. He was noted as being able to handle all self-care skills and functions. He did not need aid for ambulation, could leave home unrestricted, and was able to walk a few hundred yards without assistance. There were no functional permanent impairments. The Veteran’s function in his upper and lower extremities was noted as normal. The Veteran was noted as being able to handle his financial affairs. The Board notes that VA treatment records do not show the Veteran had anatomical loss or loss use of one or both of his hands and feet, was permanently blind, or so helpless as to be in need of regular aid and attendance due to any service-connected disability, or otherwise. The Veteran maintained use of all his anatomical extremities and was able to primarily care for himself. The Board notes that VA treatment records show throughout 2015 and 2016, the Veteran regularly visited the VA medical center for check-ups and for psychiatric visits, with no issues. It was also noted he often attended these visits alone and was appropriately dressed. The Veteran also actively participated in acupuncture treatment throughout 2016. The Board acknowledges the statements from the Veteran’s VA physicians regarding his need for constant care after a liver transplant. However, the Board notes that each physician only referred to the constant care as needed if or when the Veteran was to receive a liver transplant, and it would only be for the healing period. None of the physicians provided that at the time the statements were submitted, the Veteran required aid and attendance. Further, as provided above, the overwhelming medical evidence of record shows the Veteran was not in need of aid and attendance as defined under 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b), to include his November 2012 VA examination where the Veteran’s physical examination was normal and he reported actively engaging in his daily activities. Given the above, the Board finds that entitlement to SMC based on aid and attendance as result of the Veteran’s service-connected disabilities was not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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.