Citation Nr: 21001471 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 14-06 916A DATE: January 8, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus, type II, is denied. Entitlement to a compensable rating for erectile dysfunction prior to June 5, 2018, is denied. FINDINGS OF FACT 1. For the entire period of the appeal, management of the Veteran's service-connected diabetes mellitus type II required regular insulin and a restricted diet; however, it has not required regulation of activities. 2. The Veteran's erectile dysfunction has not been manifested with a deformity of the penis prior to June 5, 2018. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for the service-connected diabetes mellitus type II have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.119, Diagnostic Code 7913. 2. The criteria for a rating in excess of 0 percent for erectile dysfunction prior to June 5, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; C.F.R. §§ 3.321, 4.1, 4.2, 4.115a, 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to March 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case raises no additional issues, beyond what is discussed below. Increased rating for diabetes mellitus The Veteran is in receipt of a 20 percent evaluation for diabetes mellitus, type II, effective April 27, 2004. He seeks a higher rating for the condition for the entire period of the appeal. The 20 percent evaluation was awarded pursuant to 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. Under this code section, diabetes mellitus type II requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated 20 percent disabling. 38 C.F.R. § 4.119. Diabetes mellitus type II requiring insulin, restricted diet, and regulation of activities, is rated 40 percent disabling. Id. Diabetes mellitus type II requiring 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, is rated 60 percent disabling. Id. Diabetes mellitus type II requiring 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, is rated 100 percent disabling. Id. The term "regulation of activities" is defined in the rating criteria for a 100 percent disability rating under DC 7913 as "avoidance of strenuous occupational and recreational activities." Although not specified in the rating criteria, the Board finds that this definition also applies to the "regulation of activities" discussed in the 40 percent and 60 percent disability ratings under DC 7913. Additionally, medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). The rating criteria for diabetes are successive; 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. The lack of a need for regulation of activity is determinative as to any claim for evaluation in excess of the current 20 percent. Id. at 366. Competent medical evidence is required to establish "regulation of activities," namely, avoidance of strenuous occupational and recreational activities, for a 40 percent rating under DC 7913. Id. at 364. At the outset, the Board acknowledges that the Veteran's diabetes mellitus type II has required the use of insulin and a restricted diet for control, thus warranting the currently assigned 20 percent rating. What is still in question, however, is whether the Veteran's diabetes mellitus required the regulation of activities, as would be necessary to warrant an increase of the disability evaluation to 40 percent. In April 2004, the Veteran’s medical record listed his physical restrictions to be “as tolerated.” In a June 2005 psychiatry note, the Veteran was told he needed to increase his activity level and watch his diet. A note from an August 2013 mental health physician assistant suggested to start physical activity for weight loss, even if it is only 5-10 minutes of activity initially. A February 2018 primary care note shows that he had a discussion with his doctor about trying to increase his activity level. The Veteran was noted to be interested in physical therapy. In January 2019, the Veteran was instructed to try to exercise at least 30 minutes 3 times per week, if possible, and that any increase in physical activity may be useful in controlling blood pressure. At a March 2019 optometry appointment, the Veteran was counseled on the need to get blood glucose under control through diet, exercise, and medication. In November 2019, the Veteran was counseled on the importance of regular exercise and/or physical activity to control his blood pressure. The Veteran was found to have limited ability to exercise but was encouraged to increase physical activity as much as possible. During a January 2020 preventative health screening, the Veteran was found to have the ability to change and control body position. The Veteran was noted as walking frequently. The Veteran has been afforded multiple VA examinations for his diabetes mellitus. During a VA examination in July 2004, the Veteran complained of fatigue and said that sometimes it restricts his activities. In a March 2007 VA examination, the Veteran denied restriction of activities on the account of his diabetes. VA Examinations from June 2009; April 2013; April 2012; June 5, 2018; and June 8, 2018, did not find a requirement to regulate activities as part of medical management of diabetes mellitus. Throughout the appeal period, the Veteran's diabetes mellitus has not manifested symptoms that require regulation of activities. The preponderance of the evidence is against the claim for a rating in excess of 20 percent for the Veteran's service-connected diabetes mellitus, type II, there is no doubt to be resolved, and an increased rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Compensable rating for erectile dysfunction prior to June 5, 2018 The Veteran's erectile dysfunction has been rated under DC 7522. Under this Code, penis deformity, with loss of erectile power, is evaluated at a maximum of 20 percent disabling. 38 C.F.R. § 4.115b, DC 7522. The Veteran was assigned a 20 percent rating for his erectile dysfunction with an effective date of June 5, 2018. Since the Veteran is already at the maximum rating under DC 7522, the Board must evaluate the claim to determine if the Veteran met the requirements for a 20 percent rating, deformity of the penis, at any time for the period on appeal prior to June 5, 2018. In a December 2006 VA consultation for erectile dysfunction, the examining doctor noted the Veteran’s penis as unremarkable. In June 2009, the Veteran reported for a VA examination for erectile dysfunction. The examiner confirmed erectile dysfunction but found the Veteran’s penis to be normal with no deformities. In the subsequent July 2009 rating decision, the Veteran was granted special monthly compensation based on the loss of use of a creative organ. The RO found that the Veteran’ erectile dysfunction was aggravated by his service-connected diabetes. The Veteran was afforded another VA examination in April 2012 for his erectile dysfunction. The examiner noted that the Veteran reported a possible penile deformity. However, the examiner found no deformity. During the Veteran’s April 2013 VA examination, the Veteran reported normal anatomy with no penile deformity or abnormality. In the Veteran’s March 2014 VA Form 9, he reported that his erectile dysfunction was worsening. In the January 2018, the Board remanded this case for a VA examination to evaluate the severity of the Veteran’s erectile dysfunction. As a result of the January 2018 Board remand, the Veteran was afforded a VA examination in June 2018. During this examination, the examiner incidentally found the Veteran to have a penile deformity. He was then granted a separate 20 percent rating for erectile dysfunction in the August 2019 rating decision. Based on the evidence of record, the Board finds that a deformity of the penis has not been shown by the medical evidence of record prior to June 2018. Therefore, the Board must conclude that the preponderance of the evidence is against a finding of a compensable rating for erectile dysfunction prior to June 5, 2018. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.