Citation Nr: 21000525 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-04 414 DATE: January 5, 2021 ORDER A schedular rating in excess of 20 percent for diabetes with erectile dysfunction is denied. FINDINGS OF FACT 1. The Veteran’s diabetes is not shown to require regulation of activities. 2. The Veteran’s erectile dysfunction is not shown to have resulted in removal of half or more of his penis, resulted in removal of the glans of the penis, resulted in any deformity of the penis either interiorly or exteriorly, or resulted in any voiding dysfunction. CONCLUSION OF LAW The criteria for a schedular rating in excess of 20 percent for diabetes with erectile dysfunction have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1970 to February 1972, to include service in the Republic of Vietnam. In August 2018, the Board denied the claim, which the Veteran appealed to the United States Court of Appeals for Veterans Claims. In June 2019, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Remand (JMR). In March 2020, the Board remanded the claim for further development. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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. In April 2015, the Veteran filed an increased rating claim for diabetes. A July 2015 rating decision continued to assigned 20 percent for the Veteran’s diabetes with erectile dysfunction. He asserts he is entitled to a higher rating. In his August 2015 notice of disagreement, he reported that a physician told him that his diabetes was supposed to be at 40 percent disabling. In October 2015, he reported that because he was on insulin, his diabetes should be rated at 40 percent disabling. In January 2016, he reported that he was unable to eat salty or fried foods. The Veteran’s diabetes is rated 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 requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes that requires 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 assigned for diabetes that 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. Because of the successive nature of the rating criteria for diabetes, e.g., 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, 156 (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, avoidance of strenuous occupational and recreational activities, for a 40 percent rating under Diagnostic Code 7913. See Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). In the June 2019 JMR, the parties agreed that the Board should address the Veteran’s medical record dated in April 2010. At that time, the Veteran’s physician reported that the Veteran should avoid strenuous activity to prevent hypoglycemic reactions due to his diabetes. However, more recent records dated after the Veteran’s increased rating claim do not show that a physician placed him on any regulation of activities in order to control his diabetes. In fact, the Veteran was encouraged to lose weight and exercise in May 2015, December 2016, January 2018, December 2018, March 2019, September 2019, and December 2019. In June 2015, the Veteran was afforded a VA examination. The examiner indicated that the Veteran was prescribed an oral hypoglycemic agent, was prescribed insulin, and managed his diabetes with a restricted diet. The examiner indicated that the Veteran did not require regulation of activities. The examiner indicated that the Veteran did not have any hospitalizations during the previous 12 months. The examiner reported that the Veteran had a normal examination of his peripheral nerves. The examiner reported that the Veteran did not have bowel or bladder incontinence. In August 2020, the Veteran was afforded a VA examination. The examiner indicated that the Veteran was prescribed insulin. The examiner indicated that the Veteran did not require regulation of activities. The examiner indicated that the Veteran did not have any hospitalizations during the previous 12 months. The examiner reported that the Veteran did not have any complications from diabetes, such as peripheral neuropathy or incontinence. The claims file does not contain current evidence that the Veteran requires regulation of activities for his diabetes. While the Veteran’s physician reported that the Veteran should avoid strenuous activity in April 2010, greater weight is given to the more recent medical records dated after the Veteran’s April 2015 increased rating claim that show that the Veteran was encouraged to lose weight and exercise. In addition, both the June 2015 and August 2020 VA examiners indicated that the Veteran did not require regulation of activities. As such, a rating in excess of 20 percent cannot be assigned in the absence of regulation of activities, which has not been shown. Regarding the Veteran’s erectile dysfunction, a June 2010 rating decision granted special monthly compensation based on the loss of use of a creative organ effective August 5, 2009. The rating schedule provides three codes for penile impairment. Removal of half or more of the penis is rated as 30 percent disabling, or is to be rated based on voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7520. Removal of the glans of the penis is rated as 20 percent disabling, or is to be rated based on voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7521. Deformity of the penis with loss of erectile power is rated as 20 percent disabling. 38 C.F.R. § 4.115b, Code 7522. In every instance where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. There is no schedular rating for loss of erectile power alone. Although Diagnostic Code 7522 requires a “deformity” for a compensable rating, VA has not expressly defined this term, but the Court has found that the ordinary meaning of this word is appropriate, noting that a “deformity” is a “distortion of any part or general disfigurement of the body.” Dorland’s Illustrated Medical Dictionary 478 (32d ed. 2012). The Court held that “deformity” under Diagnostic Code 7522 means a distortion of the penis, either internal or external. 38 C.F.R. § 4.115(b), Diagnostic Code 7522. See Williams v. Wilkie, 30 Vet. App. 134 (2018). In June 2015, the Veteran was afforded a VA examination. He reported difficulty getting and maintaining an erection. While the examiner diagnosed the Veteran with erectile dysfunction, an examination of the penis was not performed. In the June 2019 JMR, the parties agreed that because the June 2015 VA examiner did not examine the Veteran’s penis, a remand was required to afford the Veteran a new VA examination. In August 2020, the Veteran was afforded a VA examination. The Veteran reported that he was unable to have an erection at all. On examination, the Veteran’s penis and testes were normal. The examiner did not indicate that the Veteran had undergone any removal of half or more of his penis, had undergone removal of the glans of the penis, or had any deformity of the penis. The examiner indicated that the Veteran did not have voiding dysfunction. The Veteran’s treatment records do not show that he has undergone any removal of half or more of his penis, has undergone removal of the glans of the penis, or has any deformity of the penis. There is also no showing that there is any internal or external penile deformity. The Veteran has not described any symptoms that would suggest a penile deformity either internally or externally. Finally, there is no showing that the Veteran has voiding dysfunction. The claims file does not contain evidence that the Veteran’s erectile dysfunction has resulted in removal of half or more of his penis, removal of the glans of the penis, any deformity of the penis, or any voiding dysfunction. As such, a separate compensable rating cannot be assigned. Accordingly, a schedular rating in excess of 20 percent for diabetes with erectile dysfunction is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.