Citation Nr: 21066328 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 12-27 559A DATE: October 29, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus, Type II, is denied. REMANDED Entitlement to a compensable disability rating for service-connected erectile dysfunction is remanded. FINDING OF FACT The Veteran does not require insulin to manage his service-connected diabetes mellitus, Type II. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for service-connected diabetes mellitus, Type II, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in October 2011 and September 2012 of a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2019 decision, the Board denied the issues on appeal. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court remanded the claim to the Board for actions consistent with a Joint Motion for Remand (JMR) filed by the parties. This case was most recently before the Board in January 2021 when it was remanded for additional development. It has returned for adjudication. Increased Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 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 rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus, Type II The Veteran's diabetes mellitus, Type II, is currently assigned a 20 percent disability rating pursuant to 38 C.F.R. § 4.120, Diagnostic Code 7913. Under this diagnostic code, a 20 percent evaluation is warranted when insulin and a restricted diet, or; an oral hypoglycemic agent and a restricted diet is required. A 40 percent disability rating is assigned when insulin, a restricted diet, and regulation of activities are required. A 60 percent disability rating is warranted when diabetes mellitus 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 maximum 100 percent evaluation is warranted when diabetes mellitus requires 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 either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. In light of the conjunctive "and" in the criteria for 40, 60, or 100 percent disability ratings under Diagnostic Code 7913, all criteria must be met to establish entitlement to the next-higher disability rating. Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007); cf. Johnson v. Brown, 7 Vet. App. 95, 97 (1994) (holding that "or" in the rating criteria shows that each is an independent basis for granting that rating). Complications of diabetes mellitus are to be evaluated separately, unless they are part of the criteria used to support a 100 percent evaluation. 38 C.F.R. § 4.119, Note (1). Pursuant to Note (1) to Code 7913, the noncompensable complications of the Veteran's erectile dysfunction and non-proliferative diabetic retinopathy are considered part of his diabetic process. Here, however, the Board notes that in the August 2020 JMR, the Veteran specifically noted that he was not pursuing an increased rating for diabetic nephropathy. Additionally, the Veteran did not appeal the ratings assigned to his diabetic neuropathy in the upper and lower extremities. Finally, the Veteran's service-connected erectile dysfunction is addressed separately, below. The evidence weighs against finding any additional complications of diabetes mellitus, Type II. Turning to the evidence of record, VA treatment records dated in March 2010 indicate that the Veteran's diabetes, Type II, was controlled and that he was prescribed oral medications. In September 2010, the Veteran was advised to increase his activity level. The Veteran was afforded a VA examination in November 2010 to assess the severity of his diabetes mellitus, Type II. At that time, the Veteran reported that his symptoms have progressively worsened and that he was prescribed oral medication. The Veteran described a history of chest pain and night sweats. He stated that he has a tightness in his chest causing a dull pain that lasts about 10 minutes and occurs a couple of times in an hour, mainly when he is driving. The Veteran had episodes of hypoglycemia reactions or ketoacidosis, but they did not require hospitalization. He visited a diabetic care provider monthly or less often related to the episodes. The examiner noted that the Veteran was instructed to follow a restricted diet, but he was not restricted in ability to perform strenuous activities. He denied visual disorders, neurovascular disease, diabetic nephropathy, skin disorders, gastrointestinal disorders, and other diabetic complications. VA treatment records dated in April 2011 indicate that the Veteran was obese and he was interested in the MOVE! Program. In May 2011, it was noted that he was "not getting enough physical activity" and he was advised to do some exercise every day and increase his daily activity. In May 2012, the Veteran was advised to be evaluated by a primary care provider before increasing physical activity related to cardiovascular concerns. Occupational therapy notes beginning in June 2012, however, indicate that the Veteran was continuing home exercises to help with range of motion, joint mobility, and strength. In October 2015, the Veteran's diabetes mellitus, Type II, was reportedly "doing well" and in March 2016, it was described as "in good control". The Veteran was afforded a VA examination in March 2017 to assess the current severity of his diabetes mellitus, Type II. The examiner noted that the Veteran's treatment included prescribed oral hypoglycemic agents. Additionally, the examiner noted that the Veteran required regulation of activities as part of his medical management of diabetes mellitus. Specifically, the Veteran reported that he experienced low blood sugar with exertion causing him to feel dizzy, shaky, and diaphoretic. Accordingly, the Veteran carried a glucose supplement. However, the Veteran reported visiting his diabetic care provider less than 2 times per month for episodes of ketoacidosis or hypoglycemia and denied any hospitalization for either condition in the previous 12 months. The Veteran further denied any progressive unintentional weight loss or loss of strength related to diabetes mellitus. The examiner noted the Veteran's diabetic peripheral neuropathy, diabetic nephropathy, and erectile dysfunction, attributable to diabetes mellitus. There were no other pertinent physical findings or complications noted. The examiner stated that the Veteran's diabetes mellitus would impact his ability to work due to fatigue and inability to concentrate due to swings in blood sugar levels. In April 2019, the Veteran's diabetes mellitus was also noted to be controlled "without complication" and without long-term or current use of insulin. The same was noted in September 2020. The Veteran was afforded an additional VA examination in July 2021 to assess the severity of his service-connected diabetes mellitus, Type II. At that time, the Veteran reported being prescribed oral medications for his diabetes mellitus, Type II and denied use of insulin. He further denied that regulation of activities was part of his medical management of the disability. The Veteran further indicated that he visited his diabetic care provider less than 2 times per month for episodes of ketoacidosis and had not had any episodes of ketoacidosis or hypoglycemic reactions in the previous 12 months that required hospitalization. There was no indication of progressive unintentional weight loss or loss of strength attributable to diabetes mellitus. The examiner noted that the Veteran did have diabetic peripheral neuropathy, diabetic nephropathy, and erectile dysfunction related to his disability. However, the examiner found that the Veteran's diabetes mellitus, Type II would not impact his ability to work. After a review of the above, the Board finds that a disability rating in excess of 20 percent for diabetes mellitus, type II, is not warranted. The August 2020 JMR indicated that the Board provided an inadequate reasons and bases statement denying an increased rating for diabetes mellitus based on a finding that regulation of activities was not required. Specifically, the Board pointed to evidence showing that the Veteran continued to hunt, ski, camp, and hike despite noting that the March 2017 VA examiner stated the Veteran's diabetes required regulation of activities. The parties to the JMR found that such analysis imposed a higher standard than required in the diagnostic code. The parties further noted that the Board found that the Veteran's diabetes was manifested by a restricted diet and prescribed insulin, meaning the main issue of contention is whether the Veteran's diabetes required regulation of activities for purposes of granting a higher disability rating. Indeed, included in the July 2019 decision Findings of Fact, the Board indicated that the Veteran's diabetes is manifested by prescribed insulin. Upon a closer review of the record, however, the Board now considers this finding was erroneous. The most probative evidence of record does not reflect that the Veteran's treatment for his diabetes mellitus, type II, required the use of insulin at any time during the appeal period. Insulin was not indicated in any of the 3 examination reports, and the private treatment records clearly indicate that his diabetes was controlled "without use of insulin". In a September 2021 brief, the Veteran's representative even pointed to medical records dated in June 2020 that reflect that the physician wanted an evaluation to determine alternative therapy to the currently prescribed, orally administered, metformin for diabetes management. The representative stated that the recommended change in medication could indicate that the Veteran would begin using insulin for diabetes management. However, metformin was still on the Veteran's medication list in September 2020 and there is no evidence that insulin was added to the Veteran's diabetes treatment. As noted above, the private treatment records as recently as September 2020 indicate that the Veteran was not using insulin and the Veteran explicitly denied using such during the July 2021 VA examination. Accordingly, even considering the one-time notation of required regulation of activity during the March 2017 VA examination, the Veteran's symptomatology does not satisfy the criteria for a higher disability rating under the applicable diagnostic code which requires restricted diet, regulation of activities, and insulin for the next-higher disability rating. The Board recognizes that the Veteran believes his diabetes mellitus, type II, warrants a higher disability rating. As a lay person, the Veteran is competent to report symptoms he experiences, as this requires only personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic code and rating criteria, as this involves specialized medical education, training, and experience, which the Veteran has not been shown to possess. 38 C.F.R. § 3.159. The Board finds that the VA examination reports of record are consistent with the Veteran's subjective reports and largely based on pertinent treatment records. Accordingly, the reports are considered the most probative evidence of record and provide a sufficient basis upon which the Board can assess the severity of the Veteran's diabetes mellitus, Type II. As the predominant symptoms of the Veteran's diabetes mellitus are contemplated by the assigned 20 percent rating, an increased disability rating is not warranted. Given that the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). REASONS FOR REMAND 2. Entitlement to a compensable disability rating for service-connected erectile dysfunction is remanded. As noted by the parties in the August 2020 Joint Motion for Remand, the issue of whether the Veteran's service-connected erectile dysfunction is manifested by an internal deformity, namely nerve damage, has been raised by the record. Notably, in the March 2017 VA examination report, the examiner indicated that the Veteran's erectile dysfunction could be related to nerve damage from neuropathy. The Veteran submitted private treatment records dated in September 2020 noting that he had impotence with "decreased penile sensation." During a July 2021 VA examination, the Veteran again reported that he had barely any sensation in his penis. After a physical examination of the Veteran's penis, the examiner noted that it was normal and without deformity. However, it is unclear whether the examiner considered any potential nerve damage or neuropathy as part of the assessment. Accordingly, the issue must be remanded for an additional examination. The matters are REMANDED for the following action: Schedule a VA examination to ascertain the current severity and manifestations of the Veteran's service-connected erectile dysfunction. The claims file, to include a copy of this remand, should be available to and reviewed by the examiner. All indicated tests and studies should be performed. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. He or she should specifically address whether the Veteran has any internal or external penile deformity, specifically to include any nerve damage resulting from his diabetic neuropathy. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.