Citation Nr: 20079956 Decision Date: 12/18/20 Archive Date: 12/18/20 DOCKET NO. 17-21 138 DATE: December 18, 2020 ORDER Entitlement to disability rating in excess of 20 percent for type II diabetes mellitus with erectile dysfunction is denied. REMANDED Entitlement to a compensable rating for peripheral vascular disease secondary to type II diabetes mellitus is remanded. FINDINGS OF FACT 1. In a December 2015 rating decision, the Regional Office (RO) denied entitlement to disability rating in excess of 20 percent for type II diabetes mellitus with erectile dysfunction and peripheral vascular disease. Prior to the expiration of the appeal period for this decision, new and material evidence was received. 2. During the appeal period, the Veteran’s type II diabetes mellitus required the use of an oral hypoglycemic agent and/or insulin with a restricted diet, but the need for regulation of activities was not demonstrated. Associated erectile dysfunction is not manifested by penile deformity. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for type II diabetes mellitus with erectile dysfunction have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.115b, 4.119, Diagnostic Code 7522, 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from September 1967 to April 1969. This Matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) RO. In this decision, the RO concluded that the Veteran has associated conditions of erectile dysfunction and peripheral vascular disease, which would be non-compensable if they were rated independently. For the reasons stated below, a higher disability rating for diabetes mellitus is not warranted and erectile dysfunction would be non-compensable if rated independently. However, the Board finds that the VA examination pertaining to the Veteran’s peripheral vascular disease is inadequate and remand on this issue is required to determine whether the condition is compensable. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2020. A transcript of the hearing is associated with the claims file. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to disability rating in excess of 20 percent for type II diabetes mellitus with erectile dysfunction. The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also consider entitlement to staged ratings to compensate for times since the claim was filed when the disability may have been more severe than at other times during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. In this case, the Veteran’s type II diabetes mellitus is currently assigned a 20 percent disability rating pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. The Veteran filed a claim for increased rating for type II diabetes mellitus in August 2015, which was denied in a December 2015 rating decision. The Veteran did not file a timely notice of disagreement. Instead, he filed a new claim and an additional VA examination to assess the severity and manifestations of type II diabetes mellitus was provided in April 2016. The Board notes that 38 C.F.R. § 3.156(b) provides that “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Applying these provisions to the instant case, the Veteran’s increased rating claim for type II diabetes remained pending as a result of the April 2016 VA examination. See generally Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011) (applying 38 C.F.R. § 3.156(b) to a situation involving an increased rating). Therefore, the period for consideration on appeal began on August 21, 2014, one year prior to the date of receipt of the pending claim. 38 C.F.R. § 3.400(o)(2). Under Diagnostic Code 7913, a 20 percent disability evaluation is assigned for diabetes mellitus requiring insulin and a restricted diet; or, an oral hypoglycemic agent and a restricted diet. A 40 percent disability evaluation is contemplated for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A 60 percent disability evaluation is warranted for diabetes mellitus requiring 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. A 100 percent evaluation is contemplated 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 progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119. The term “regulation of activities” is specifically defined as “avoidance of strenuous occupational and recreational activities.” Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Medical evidence is required to support this criterion. Specifically, a medical provider must indicate that the claimant’s “diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity.” Id. at 364. Although VA regulations under 38 C.F.R. §§ 4.7, 4.21 generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, those regulations do not apply where the rating schedule establishes successive criteria. The rating criteria for diabetes are successive. See Camacho, 21 Vet. App. at 366. Successive criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). For example, the diagnostic code for diabetes mellitus (Diagnostic Code 7913) is successive as each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Camacho, 21 Vet. App. at 366. Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. Id. The Veteran contends that his diabetes mellitus, type II is more disabling than reflected by the 20 percent rating he is currently assigned because his insulin has been increased. However, the Board finds that an increased rating is not warranted because, while the Veteran’s diabetes requires insulin, oral medication, and a restricted diet, he does not require regulation of activities. Additionally, his condition did not manifest with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. The Veteran underwent VA examinations in October 2015 and April 2016 for his diabetes. Both VA examiners concluded that the Veteran’s diabetes requires restricted diet, hypoglycemic agents, and insulin but not regulation of activities. In reaching this conclusion, each examiner noted that the Veteran is able to perform all of his indoor and outdoor chores. The examiners also indicated that the Veteran visits his diabetic care provider for episodes of ketoacidosis less than twice per month and for episodes of hypoglycemia less than twice per month. Additionally, they noted that the Veteran has had no hospitalizations for episodes of ketoacidosis or hypoglycemic reactions within the prior 12-month period. They further indicated that the Veteran has not had progressive unintentional weight loss and loss of strength attributable to diabetes. The Board also notes that the Veteran submitted a statement from his treating doctor, Dr. A.A., in October 2020 regarding his treatment for his diabetes. Dr. A.A. stated that the Veteran had to eat regularly to control his hypoglycemia and that he had to follow his blood sugar frequently during physical activity. She also stated that once a week he has an episode where he must treat immediately and await recovery. In addition to this evidence, there is no indication in treating records that the Veteran requires a regulation of activities due to diabetes mellitus. Having reviewed the relevant evidence, the Board finds that the Veteran’s diabetes warrants a 20 percent rating during the appeal period. The medical records reflect that the Veteran requires insulin and a restricted diet to control his diabetes. Diagnostic Code 7913 provides a 20 percent rating for these symptoms. A higher rating is not warranted because the record does not reflect that the Veteran also requires regulation of his activities prescribed by a physician. None of the examinations or treatment records indicate a requirement that he regulate his activities. Additionally, Dr. A.A.’s statement does not assert that he must regulate his activities, but only that he has to monitor his blood sugar when being active. Thus, the criteria for a 40 percent rating have not been met. Given that provisions for a 40 percent rating are directly incorporated into the criteria for 60 and 100 percent ratings, it follows that as the requirements for a 40 percent rating are not met, the next higher ratings under Diagnostic Code 7913 do not apply. Tatum v. Shinseki, 23 Vet. App. at 152 (2009). Accordingly, given the evidence of record, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran’s diabetes during the appeal period. The Board has also considered whether a separate evaluation is warranted for any compensable complication of the Veteran’s diabetes pursuant to Diagnostic Code 7913. In this regard, the October 2015 and April 2016 VA examiners indicated that the Veteran has diabetic peripheral neuropathy. The VA examiners also indicated that the Veteran has erectile dysfunction, which is at least as likely as not related to his diabetes. The Board notes that service connection is already in effect for several disabilities as secondary to diabetes, including left lower extremity diabetic peripheral neuropathy affecting the sciatic nerve, right lower extremity diabetic peripheral neuropathy affecting the sciatic nerve, left lower extremity peripheral neuropathy affecting the anterior crural nerve, right lower extremity peripheral neuropathy affecting the anterior crural nerve, right upper extremity diabetic peripheral neuropathy, and left upper extremity diabetic peripheral neuropathy. As these disabilities have already been evaluated separately, they do not fall under the purview of Note 1. 38 C.F.R. § 4.119, Diagnostic Code 7913. Additionally, erectile dysfunction has been rated with diabetes mellitus under Diagnostic Code 7913. While this condition falls under the purview of Note 1, the preponderance of the evidence shows that the Veteran did not satisfy the requisite criteria for a separate compensable rating at any point during the period on appeal. 38 C.F.R. § 4.119, Diagnostic Code 7913. Erectile dysfunction is rated by analogy under 38 C.F.R. § 4.115b, Diagnostic Code 7522. To warrant a compensable evaluation, the evidence must demonstrate deformity of the penis with loss of erectile power. Here, there is evidence that the Veteran experiences loss of erectile power, but there is no evidence establishing a deformity of the penis. It is noteworthy that the Veteran declined physical examination and did not report on the status of his anatomy during the April 2016 VA examination. Meanwhile, there is no documentation in the Veteran’s treatment history of deformity. Thus, he does not satisfy the criteria for a compensable rating under 38 C.F.R. § 4.115b, Diagnostic Code 7522. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess for 20 percent for type II diabetes mellitus and an additional separate rating for complications arising from erectile dysfunction is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND The issue of entitlement to a compensable rating for peripheral vascular disease is remanded to correct a duty to assist error. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was provided two VA examinations in connection with his claim for an increased rating for type II diabetes mellitus with peripheral vascular disease and erectile dysfunction. Neither of these examinations adequately assessed the severity and manifestations of the Veteran’s peripheral vascular disease. Peripheral vascular disease is rated under 38 C.F.R. § 4.104, Diagnostic Code 7114, which provides a 20 percent rating if evidence shows claudication on walking more than 100 yards, and diminished peripheral pulses or an ankle/brachial index (ABI) of 0.9 or less. A 40 percent is assigned if there is claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin, absence of hair, dystrophic nails) or ABI of 0.7 or less. A 60 percent rating requires claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or ABI of 0.5 or less. A 100 percent rating is warranted for ischemic limb pain at rest, and; either deep ischemic ulcers or ABI of 0.4 or less. Note 1 to Diagnostic Code 7114 provides that the ABI is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. The criteria listed in Diagnostic Code 7114 are conjunctive, as evidenced by the use of the word “and.” Melson v. Derwinski, 1 Vet. App. 334 (1991); Camacho v. Nicholson, 21 Vet. App. 360 (2007) (use of the conjunctive and in rating criteria means entitlement to that rating required all criteria be met). For example, the Veteran must demonstrate claudication on walking more than 100 yards and either (1) diminished peripheral pulses, or (2) an ankle/brachial index of 0.9 or less in order to satisfy the criteria for a 20 percent rating. In December 2015, the Veteran underwent a VA examination to assess the severity and manifestations of his diabetes mellitus, which included peripheral vascular disease. At the examination, the Veteran presented with diminished peripheral pulses and he complained of occasional right calf pain with long distance ambulation. However, the VA examiner did not address whether the Veteran’s pain is attributed to claudication on walking. The Veteran underwent another VA examination in April 2016, and he presented again with diminished peripheral pulses. He also complained of frequent cramping in both calves. However, this VA examiner also did not clarify whether this pain is attributed to claudication on walking. In addition to this evidence, the record reveals that the Veteran has been treated for muscle cramping of the limbs. The record also includes a notation that the Veteran has nocturnal leg cramps from another VA examiner, who evaluated the Veteran for neuropathy in May 2017. It is clear from the record that the Veteran experiences cramping in his legs, but it is unclear whether the cramping is caused by claudication on walking. Accordingly, it is necessary to secure a new VA medical examination that fully addresses the severity and manifestation of the Veteran’s peripheral vascular disease. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records documenting care for peripheral vascular disease. If no such records are located, that fact should be documented in the claims file. 2. After all available records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the current level of severity and manifestations of his peripheral vascular disease. Any and all studies, tests, and evaluations deemed necessary by the examiners should be performed. The examiner is requested to review all pertinent records associated with the claims file and a copy of this remand. The Veteran is competent to attest to observable events and symptomatology. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner should include an evaluation for each of the aspects that are characteristic of peripheral vascular disease. Specifically, the examiner should address whether the Veteran’s consistent complaints of cramping in his legs in the record are due to claudication on walking or not. All conclusions should be accompanied by a thorough rationale. 3. After ensuring that the examination complies with the terms of this remand, the AOJ should re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Beech, 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.