Citation Nr: 21067176 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-17 217A DATE: November 3, 2021 ORDER A rating higher than 20 percent prior to September 22, 2020, and higher than 40 percent thereafter for diabetes mellitus, type II (DMII) with erectile dysfunction is denied. FINDING OF FACT Prior to September 22, 2020, there is no evidence the Veteran's DMII required regulation of activities; there is no evidence that the Veteran's DMII caused any episodes of ketoacidosis or hypoglycemic reactions at any time during the course of the appeal. CONCLUSION OF LAW The criteria for a rating higher than 20 percent prior to September 22, 2020, and higher than 40 percent thereafter for DMII are not met. 38 U.S.C. § §§ 1155; 38 C.F.R. §§ 4.1, 4.2 4.7, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to January 1971. He is the recipient of the Vietnam Service Medal and the Vietnam Campaign Medal. The Veteran testified before the undersigned Veterans Law Judge at a hearing in May 2020; a copy of the transcript is of record. Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. DMII The Veteran's DMII is assigned a 20 percent rating prior to September 22, 2020, and 40 percent thereafter pursuant to DC 7913. In August 2016, the Veteran sought a higher rating. Under DC 7913, a 40 percent rating is warranted for diabetes mellitus that requires insulin, restricted diet, and regulation of activities. A 60 percent rating is assigned where the Veteran requires insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or weekly visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is assigned when the Veteran 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. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Non-compensable complications are considered part of the diabetic process under DC 7913. See 38 C.F.R. § 4.119, DC 7913, Note (1). As the Veteran currently receives separate ratings for diabetic neuropathy of the bilateral upper and lower extremities and hypertension the symptoms related to those disabilities cannot be considered in evaluating the level of disability due to DMII. 38 C.F.R. § 4.14. After review of the record, the Board does not find that the evidence of record supports higher ratings for the Veteran's DMII. Prior to the Veteran's September 22, 2020, VA examination there was no evidence of record which indicated the Veteran had a regulation of his activities. His 2016 VA examination did not include such a finding and his VA medical records do not contain any indications that regulation of the Veteran's activities was recommended in conjunction with his DMII. The Veteran also did not provide any testimony in his May 2020 hearing that his physician had advised him to regulate his activities in any formal manner, stating that he was only told to let his body tell him what he can do. It was not until the September 22, 2020, VA examination that a finding of a regulation of activity is contained in the record. As such, a rating higher than 20 percent prior to the September 2020 VA examination is not warranted. A rating higher than 40 percent would require a finding that the Veteran had some episode of ketoacidosis or hypoglycemic reactions. There is no evidence of record which shows that the Veteran has met this criteria at any time during the pendency of his appeal. As such, a rating higher than 40 percent is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ED ED has been identified as a complication of the Veteran's diabetes, but for which a compensable disability rating is not warranted. 38 C.F.R. § 4.115b, DC 7522. The Board must thus determine whether a compensable disability rating can in fact be awarded for ED. Erectile dysfunction is rated by analogy, to "penis, deformity, with loss of erectile power," DC 7522. See 38 C.F.R. § 4.20. The rating schedule provides a 20 percent rating for deformity of the penis with loss of erectile power. This is a conjunctive set of criteria; both must be present to warrant compensation at the sole authorized level, 20 percent. In this case, the medical evidence does not indicate that the Veteran has a penile deformity, and he does not contend otherwise. See 2016 and 2020 VA examinations. Where the criteria for a compensable rating under a diagnostic code are not met, as here, a non-compensable rating is awarded. See 38 C.F.R. § 4.31. Consequently, there is no basis for payment of compensation for ED under the rating schedule. The Board also points out that special monthly compensation based on loss of use of a creative organ under 38 U.S.C. § 1114(k) has in fact been awarded. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.