Citation Nr: 20070113 Decision Date: 10/29/20 Archive Date: 10/29/20 DOCKET NO. 17-21 209 DATE: October 29, 2020 ORDER An initial disability rating in excess of 20 percent for type II diabetes mellitus is denied. Service connection for primary myelofibrosis is granted. FINDINGS OF FACT 1. Management of the Veteran’s diabetes mellitus is not shown to require regulation of activities. 2. The Veteran has been diagnosed with primary myelofibrosis; it is at least as likely as not that the condition is related to his military service, to include his presumed exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for a disability 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, 4.119, Diagnostic Code 7913. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for primary myelofibrosis have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1970 to January 1973, to include service in Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia. In his April 2017 substantive appeal, the Veteran indicated that he wanted to appear at a Board hearing in Washington, D.C. However, he later withdrew that request in November 2019. 38 C.F.R. § 20.704(e). The Board notes that the agency of original jurisdiction (AOJ) furnished the Veteran a supplemental statement of the case relative to the issues herein decided in October 2019. Although additional VA-generated evidence has been added to the record since that time, none of it bears meaningfully on the outcome of the present appeal. In addition, the Veteran’s attorney has requested that the Board proceed to a decision on all issues properly before it based on the written submissions. See August 2020 brief. Under the circumstances, the Board finds that there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1304(c). 1. Entitlement to an initial disability rating in excess of 20 percent for type II diabetes mellitus. The Veteran seeks a higher rating for his diabetes. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will ordinarily 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Diabetes mellitus is rated under the criteria set forth at 38 C.F.R. § 4.119, Diagnostic Code 7913. That diagnostic code provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted if diabetes mellitus is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection(s) of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when the condition requires one or more daily injection(s) of insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the condition requires one or more daily injection(s) 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 100 percent rating is warranted when diabetes 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. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran’s disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran’s favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question for the Board in this case is whether the Veteran’s diabetes mellitus has required one or more daily injection(s) of insulin, restricted diet, and regulation of activities so as to warrant a rating in excess of 20 percent. Regulation of activities is defined as “avoidance of strenuous occupational and recreational activities.” This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Veteran was afforded a VA examination in January 2015. The examiner noted that the Veteran was being treated with Metformin, but that he did not require regulation of activities as part of the medical management of his diabetes mellitus. It was also noted his frequency of diabetic care was less than two times per month and he had no hospitalizations for episodes of ketoacidosis or hypoglycemic reactions in the prior 12 months. The examiner opined that the Veteran’s diabetes did not impact his ability to work. The examiner was afforded another VA examination in August 2019. It was noted there was no current treatment. The examiner indicated that the Veteran had previously been on Metformin, but that it was discontinued due to diarrhea, although the Veteran reported that he had been taking Metformin from previous prescriptions. It was again noted that the Veteran did not require regulation of activities as part of the medical management of diabetes mellitus. It was also noted that his frequency of diabetic care was less than two times per month and that he had no hospitalizations for episodes of ketoacidosis or hypoglycemic reactions in the prior 12 months. The examiner opined that the Veteran’s diabetes mellitus did not impact his ability to work. In September 2019, a VA examiner opined that due to diabetes mellitus and the service-connected complication of peripheral neuropathy, the Veteran would need to avoid working in unprotected heights and would need to avoid extreme cold or hot work environments. However, there was no suggestion that his condition required regulation of activities for purposes of medical management. In light of the foregoing, the Board must conclude that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the Veteran’s type II diabetes mellitus. Although the evidence shows that the Veteran has required an oral hypoglycemic agent and restricted diet for management of his condition, a higher rating also requires a regulation of activities. Both VA examiners opined that the Veteran did not require regulation of activities, and the record does not otherwise suggest that he requires such regulation. As the preponderance of the evidence is against the claim, the appeal of this issue must be denied. 2. Entitlement to service connection for primary myelofibrosis. The Veteran contends that his primary myelofibrosis is related to his military service, including his exposure to Agent Orange. He has submitted medical opinion evidence in support of his claim and points out that the Board has previously found a similar connection in other cases. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e). Primary myelofibrosis is not among those diseases. Notwithstanding the foregoing presumptive provisions, service connection for a disability claimed as due to exposure to herbicide agents may be established on a direct basis by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there is no dispute that the Veteran has a current disability. The evidence clearly shows that he has a current diagnosis of primary myelofibrosis. Nor is there any real dispute that the Veteran was exposed to herbicide agents in service. The record shows that he served in the Republic of Vietnam during the Vietnam War era. As such, exposure to herbicide agents is presumed. See also February 2015 and October 2019 rating decisions (conceding the Veteran’s exposure to herbicide agents on the basis of service in Vietnam). There is also evidence that the Veteran’s current diagnosis of primary myelofibrosis is linked to his military service. In an undated opinion received in February 2017, a private provider opined that there was a high probability that the Veteran’s medical condition was from working in military service secondary to Agent Orange exposure. However, the provider did not supply a substantive rationale to support that conclusion. In August 2020, another private medical provider opined that it was more likely than not that the Veteran’s myelodysplastic disorder resulted from Agent Orange, benzene, and aviation fuel vapor exposure while in Vietnam. The provider included a detailed rationale to support that conclusion. The opinion was based on an accurate medical history, a review of the record, and included an explanation that set out clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the opinion is highly probative. In December 2015, a VA provider noted that upon reviewing the literature the provider was unable to find any studies demonstrating an association between primary myelofibrosis and exposure to Agent Orange. Notably, however, the provider stated that the expertise needed to provide an opinion that the Veteran’s primary myelofibrosis was related to Agent Orange exposure was beyond the scope of provider’s practice. The Board assigns more probative value to the August 2020 opinion. Based on the foregoing, the Board is persuaded that the criteria for an award of service connection for primary myelofibrosis have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. The appeal of this issue is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. 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.