Citation Nr: 20030198 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 14-28 609A DATE: April 29, 2020 ORDER A rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction is denied. A rating in excess of 30 percent for residuals of shell fragment wound (SFW) of the left shoulder with retained foreign bodies is denied. REMANDED Entitlement to a rating in excess of 20 percent for degenerative joint disease of the left shoulder is remanded. FINDINGS OF FACT 1. For the entire period at issue, the Veteran has not required regulation of activities as part of medical management of diabetes mellitus nor has he shown evidence of penile deformity. 2. For the entire period at issue, the Veteran’s residuals of SFW of the left shoulder with retained foreign bodies has been assigned the maximum 30 percent rating for this disability under the regular schedular criteria. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.119, Diagnostic Codes 7522, 7913. 2. The criteria for a rating in excess of 30 percent for residuals of SFW of the left shoulder with retained foreign bodies have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.73, Diagnostic Code 5301. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to December 1970, to include service in the Republic of Vietnam. The Veteran testified via videoconference at a hearing before the undersigned Veteran’s Law Judge in October 2017. These matters were before the Board in March 2018, along with the issue of entitlement to service connection for a low back disability, when they were remanded for additional development. By rating decision in December 2019, the Agency of Original Jurisdiction (AOJ) granted service connection for a low back disability (lumbar strain). The United States Court of Appeals for the Federal Circuit has held that the AOJ’s award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran’s notice of disagreement on such issue. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). This issue, therefore, is no longer before the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). Diabetes Mellitus with Erectile Dysfunction The Veteran’s diabetes mellitus with erectile dysfunction is currently rated 20 percent disabling under Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent rating is assigned when diabetes requires either insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned when diabetes mellitus requires insulin, a restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. The Board notes incidentally that the Veteran is also service-connected for diabetic peripheral neuropathy of the right and left lower extremities; he is assigned separate ratings for these disabilities. See id., Note 1. Because of the successive nature of the rating criteria for diabetes mellitus (i.e. the evaluation for each higher disability rating includes the criteria of each lower disability rating), each of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152 (2009). Stated another way, if a component is not met at any one level, a veteran can only be rated at the level that did not require the missing component. Id. Competent medical evidence is required to establish “regulation of activities,” namely, prescribed avoidance of strenuous occupational and recreational activities, for a 40 percent rating under Diagnostic Code 7913. See Camacho v. Nicholson, 21 Vet. App. 360 (2007). Upon review of the evidence of record, the Board finds that a rating in excess of 20 percent for the Veteran’s service-connected diabetes mellitus is not warranted. The evidence in this case reflects that the Veteran requires insulin and a restricted diet. These findings are noted in the 2014, 2017 and 2018 VA examinations and the Veteran’s 2017 hearing testimony. The Veteran essentially testified in 2017 that he requires regulation of activities to maintain glycemic control; however, this is not supported by the medical evidence of record. Notably, an October 2019 VA treatment record shows that the Veteran was to aim for 150 minutes of exercise or more of moderate-to-vigorous intensity aerobic activity per week, as tolerated, with no more than two consecutive days without activity. The Board has also considered whether a separate compensable rating is warranted for the Veteran’s erectile dysfunction. Compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent disability evaluation, with noncompensable complications to be considered as part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note(1). For the reasons discussed below, the Board finds that erectile dysfunction does not warrant a compensable rating. Erectile dysfunction is rated by analogy under 38 C.F.R. § 4.115b, Diagnostic Code 7522, which provides that deformity of the penis with loss of erectile power is rated as 20 percent disabling. A November 2018 VA Male Reproductive System Conditions Disability Benefits Questionnaire (DBQ) showed the Veteran took continuous medication for his erectile dysfunction. A physical examination was not performed based on the Veteran’s request, but he reported normal anatomy without deformity or abnormality. While the record shows that the Veteran has experienced loss of erectile power, for which he takes medication, the record does not show any finding of penile deformity. Thus, a separate compensable rating for erectile dysfunction under Diagnostic Code 7522 is not warranted. Although a separate, compensable rating is not warranted for the Veteran’s erectile dysfunction, the Board does note that he has been separately awarded special monthly compensation based on the loss of use of a creative organ, effective August 20, 2003, to compensate for his inability to achieve an erection sufficient for penetration and ejaculation. See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). Residuals of SFW of the Left Shoulder Muscle group I involves the extrinsic muscles of the shoulder girdle: the trapezius, levator scapulae, and serratus magnus. Under the provisions of 38 C.F.R. § 4.73, Diagnostic Code 5301, for Muscle Group I function, a maximum 30 percent rating is assigned for a muscle injury that is severe in the non-dominant extremity. Historically, the Veteran sustained multiple SFWs in service, including in his left (non-dominant) shoulder. This wound was debrided. Following service, a December 1974 VA examination report notes findings of a superficial oval scar (1½ by ¼ inches) at the midpoint of the inner border of the left scapula, with no keloid or attachment. There was also a superficial scar (1 by ¾ inches) on the back of the left shoulder that was well-healed, with no keloid or attachment. There was very mild tenderness to pressure over these scars. The Veteran had full use of his left arm. In September 2013, the Veteran submitted a claim for entitlement to a rating in excess of 10 percent for residuals of SFW of the left shoulder with retained foreign bodies. A December 2019 rating decision awarded an increased 30 percent rating for this disability, effective September 12, 2013. As the Veteran did not express satisfaction with that decision, his appeal continued. Given the objective evidence of record, the Board finds that a rating in excess of the maximum 30 percent rating for the left shoulder SFW disability is not warranted. The evidence does not show nor has the Veteran argued entitlement to an extra-schedular rating. The Board acknowledges that the Veteran has left shoulder limitation of motion and scarring as a result of the SFW. However, he is already separately rated for both these disabilities. See December 2019 rating decision. Consequently, to provide for any additional compensation under Diagnostic Codes 5201 and 7802 for limitation of motion and scarring would constitute impermissible pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). For these reasons, the Board finds that a rating in excess of 30 percent is not warranted at any point during the period of the appeal. REASONS FOR REMAND Degenerative Joint Disease of the Left Shoulder Unfortunately, the Board finds that the issue of entitlement to an increased rating for degenerative joint disease of the left shoulder needs to be remanded once again. In its March 2018 remand, the Board directed that the Veteran was to be provided a VA examination to consider the nature and severity of his degenerative joint disease of the left shoulder, to specifically include consideration of both active and passive range of motion testing, as well as both weight-bearing and nonweight-bearing range of motion testing. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016); 38 C.F.R. § 4.59. The examination reports received are not in compliance with the Board’s March 2018 directives. Compliance with the Board’s remand instructions is neither optional nor discretionary. There has not been substantial compliance with the Board’s previous remand directive, and another remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: Afford the Veteran a VA examination from an appropriate examiner to determine the current nature and severity of his service-connected degenerative joint disease of the left shoulder. The claims file (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All information required for rating purposes should be provided to the examiner. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner is asked to fully describe the current severity of the left shoulder disability, including all objective manifestations. a) To be compliant with Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the examiner must address range of motion loss specifically due to pain and any functional loss during flare-ups. The examiner is to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the left shoulder is used repeatedly over a period of time. These determinations should, if feasible, be portrayed in terms of degrees of additional range of motion loss due to pain on use or during flare-ups. b) To comply with Correia v. McDonald, 28 Vet. App. 158, 170 (2016), testing of the range of motion must include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges. If such are not applicable, the examiner should state such along with an explanation. c) If it is not feasible to provide the degrees in which there is an additional loss in range of motion during flare-ups or repeated use over time or any range of motion testing, then the clinician must provide an adequate explanation as to why. d) The examiner should also comment on the functional impairment caused by the Veteran’s degenerative joint disease of he left shoulder. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. R. Fletcher, 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.