Citation Nr: 21003542 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-27 651A DATE: January 21, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for type II diabetes mellitus is denied. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure, and secondary to service-connected PTSD and type II diabetes mellitus is remanded. FINDING OF FACT The Veteran’s type II diabetes mellitus requires a restricted diet, oral hypoglycemic agents, and a regulation of activities, but not insulin. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.14, 4.119, Diagnostic Code 7913; 4.115b, Diagnostic Code 7913 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from January 1968 to January 1970, including service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2009 and May 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Board remanded the claims for further development. It is noted that the service connection claim for sleep apnea was included in that remand as the Agency of Original Jurisdiction (AOJ) did not address the Veteran’s claim for service connection in a statement of the case, as required. See Manlincon v. West, 12 Vet. App. 238 (1999). In May 2020 a statement of the case was issued to the Veteran addressing the issue of service connection for sleep apnea; however, the Veteran did not perfect an appeal as to this issue. Therefore, the claims on appeal are the two as listed above, and they have been returned for appellate review. The Board notes that the Veteran initially requested a Board hearing before a Veterans Law Judge. However, in a February 2017 correspondence, the Veteran withdrew the request and asked the Board to proceed with adjudication of his claims. 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). Entitlement to an evaluation in excess of 20 percent for type II diabetes mellitus is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. 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 VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran’s service-connected type II diabetes mellitus is currently assigned a 20 percent evaluation pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 7913. Under that diagnostic code, a 20 percent disability evaluation is assigned for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. A 40 percent disability evaluation is contemplated for diabetes mellitus requiring insulin, 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. The Court has held that, in order to demonstrate a regulation of activities, “medical evidence” is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase “regulation of activities” means “avoidance of strenuous occupational and recreational activities.” Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent rating)). Successive rating criteria, such as Diagnostic Code 7913, is 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 (2009). For example, the diagnostic code for diabetes mellitus (Diagnostic Code 7913) is successive because 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. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected type II diabetes mellitus. The evidence of record shows that the Veteran’s diabetes mellitus requires an oral hypoglycemic agent, a restricted diet, and a regulation of his activities. However, the evidence does not establish that he requires insulin to control his diabetes mellitus. Rather, numerous VA treatment records indicate that no insulin is required. See e.g. April 2016 record. Also, a December 2019 VA examiner indicated that the Veteran did not require insulin for management of his diabetes mellitus. Both the January 2011 and December 2019 VA examiner indicated the Veteran only took an oral medication, Metformin, for management of the condition. This fact is also supported in numerous VA treatment records where it is the only listed medication the Veteran uses to manage is condition. See e.g. January 2020 VA treatment record. The Board acknowledges the Veteran’s condition has worsened which is suggested by the increased dosage and frequency of his medication. See February 2020 VA treatment record (noting a dosage increase that shows Veteran now takes 850 mg of Metformin three times per day.) Nevertheless, as noted in the criteria for a 40 percent evaluation, insulin use must be required to manage the condition. Such is not the case in this instance. In summary, the Board finds that the Veteran is not required to take insulin to manage his diabetes mellitus as outlined in Camacho, which is a requirement for assignment of a 40 percent evaluation. In reaching this decision, the Board has considered the Veteran’s lay statements. However, in light of the medical evidence of record, an increased evaluation is not warranted. The Board notes that the Veteran is separately service-connected for right upper extremity peripheral neuropathy, left upper extremity peripheral neuropathy, left lower extremity peripheral neuropathy, and right lower extremity peripheral neuropathy, which are associated with type II diabetes mellitus. Based on the foregoing, the Board finds that the weight of the evidence is against an initial evaluation in excess of 20 percent for type II diabetes mellitus. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for hypertension, to include as due to herbicide exposure, and secondary to service-connected PTSD and type II diabetes mellitus is remanded. The Board notes the Veteran has had several VA examinations in connection with his claim. Most recently, in October 2020, the Veteran underwent another evaluation related to his service connection claim for hypertension. The examiner opined that it is less likely than not the Veteran’s condition was incurred in or caused by the claimed in service injury, event, or illness. Specifically, he indicated the Veteran did not have symptoms, diagnosis of treatment of hypertension, or within one year of separation of service. However, while the Veteran’s separation examination reveals his systems were normal except for his ears and neurological loss to the left side of his face, the Board notes that the Veteran reported that he experienced frequent or severe headaches, dizziness, and fainting spells. See January 1970 report of medical history. Additionally, in an undated record, the Veteran reported that he experienced shortness of breath, swollen ankles, and heart palpitations. These symptoms were not addressed in the examiner’s opinion. Therefore, it is unclear if he considered these symptoms and whether they were early signs of hypertension. Additionally, he opined that the hypertension was less likely than not related to herbicide exposure. He indicated that while studies show a link between hypertension and herbicide exposure in U.S. Army Chemical Corp Veterans, this association did not apply to other military occupational specialties. He explained that the connection in U.S. Army Chemical Corp Veterans and U.S. Air Force Ranch Hand is related to direct contact and handling and a long term standing of chemicals on the skin with chemicals and in that case the association between the condition and exposure is more likely. Contrarily, for Veteran’s who had exposure in the circumstances of an environmental dissipation or as a result of herbicides being sprayed in field conditions, the association between the hypertension and herbicide exposure is unlikely. Citing medical literature that indicates 90 percent of people 55 and over will eventually develop hypertension whether they are exposed to herbicides or not, he inferred the Veteran’s condition is likely due to his age. Lastly, the October 2020 examiner opined that it is not at least as likely or not the Veteran’s hypertension was aggravated beyond natural progression because of his service-connected PTSD or diabetes. He stated that current medical literature does not show a physiologic or biomechanical causal relationship between a mental health condition and hypertension. While anxiety may temporarily elevate blood pressure, it does not cause permanent aggravation of primary or secondary hypertension. Furthermore, he indicated medical literature did not support diabetes been an aggravating factor of hypertension or elevating the blood pressure. However, the Board finds the opinion is inadequate as it did not address the Veteran’s assertions based on medical evidence regarding a causal link between his conditions. The examiner also did not address or reconcile previous VA examination remarks that specifically suggests a connection between the Veteran’s hypertension and service-connected diabetes. Therefore, a remand is necessary for a VA opinion that addresses whether the Veteran’s hypertension is directly related to service, including being associated with noted symptoms in service. See service treatment records. Additionally, an opinion is needed to address evidence submitted by the Veteran that suggest a connection between diabetes and hypertension. Specifically, the argument set forth in the December 2020 appellant post-remand brief that states “diabetes damage the small vessels in the body causing the walls of the blood vessels to stiffen. This increases pressure, which leads to high blood pressure.” Lastly, an additional opinion is needed to address the January 2011 VA examiner’s opinion related to the Veteran’s service-connected diabetes in which it is indicated that the Veteran’s hypertension is worsened or increased by his service-connected diabetes. The examiner noted that hyperinsulinemia, due to insulin resistance in type II diabetes, may increase systemic blood pressure. He also indicated that sodium retention and volume expansion can be induced by hyperglycemia-induced increase in the filtered glucose load. Lastly, it is noted that patients with diabetes have increased vascular stiffness that can contribute to the rise of systolic pressure. The matters are REMANDED for the following action: The Veteran should be scheduled for a VA examination to determine the nature and etiology of any hypertension that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has hypertension that is causally or etiologically related to his military service, to include herbicide exposure therein (notwithstanding the fact that such an association may not be presumed). The examiner should address reports of the Veteran in service treatment records that he experienced frequent or severe headaches, dizziness, and fainting spells. See January 1970 report of medical history. Additionally, in an undated record, the Veteran reported that he experienced shortness of breath, swollen ankles, and heart palpitations. The examiner should also opine as to whether it is at least as likely as not the Veteran’s hypertension is either caused by or aggravated by his service-connected type II diabetes mellitus or service-connected PTSD. The examiner should address the assertions in the December 2020 appellant’s post-remand brief that diabetes damages the small vessels in the body causing the walls of the blood vessels to stiffen. This increases pressure, which leads to high blood pressure. Additionally, he or she should address and reconcile the January 2011 VA examiners opinion that related the Veteran’s service-connected diabetes to his hypertension. Specifically, it was indicated that his hypertension was worsened or increased by his service-connected diabetes. The examiner noted that hyperinsulinemia, due to insulin resistance in type II diabetes, may increase systemic blood pressure. He also indicated that sodium retention and volume expansion can be induced by hyperglycemia-induced increase in the filtered glucose load. Lastly, it is noted that patients with diabetes have increased vascular stiffness that can contribute to the rise of systolic pressure. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. (Continued on the next page)   A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability is viewed in relation to its history”, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.