Citation Nr: 21067335 Decision Date: 11/04/21 Archive Date: 11/03/21 DOCKET NO. 20-29 777 DATE: November 4, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to an initial rating in excess of 20 percent prior to April 2, 2020 for diabetes mellitus with erectile dysfunction is denied. Entitlement to an increased rating of 40 percent, but no higher, from April 2, 2020 for diabetes mellitus with erectile dysfunction is granted. REMANDED Entitlement to an earlier effective date than January 16, 2014 for the award of service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. The probative evidence of record shows the Veteran's sleep apnea is related to and/or due to his service-connected bi-polar disorder. 2. Prior to April 2, 2020, the Veteran's diabetes mellitus has been primarily managed by oral hypoglycemic medication and a restricted diet. 3. From April 2, 2020, the Veteran's diabetes mellitus has manifested to insulin injections more than once a day, restricted diet, prescribed oral hypoglycemic agents, and regulation of activities. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an initial rating in excess of 20 percent for diabetes mellitus with erectile dysfunction have not been met prior to April 2, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.119, Diagnostic Code 7913. 3. The criteria for an increased rating of 40 percent, but no higher, from April 2, 2020 for diabetes mellitus with erectile dysfunction have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force in May 1954 to May 1974. In February 2021, the claims were brought before the Board and were remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Entitlement to Service Connection: Sleep Apnea The Veteran contends that his sleep apnea is related to his active-duty service, to include as due to or aggravated by his service-connected bi-polar disorder. Service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In June 2021, the Veteran submitted a private opinion. The physician went extensively through the Veteran's medical history. Following a discussion of the Veteran's history, the physician opined that it was at least as likely as not that the Veteran's bi-polar disorder contributed to the development of his sleep dysfunction and sleep apnea. The physician rationalized that there has been extensive literature regarding the correlation between obstructive sleep apnea (OSA) and mental conditions, with a pronounced pattern for mood disorders like bi-polar disorder. The physician explained that several peer reviewed articles support a causal relationship and cited a journal that reported studies showing the presence of sleep apnea in patients with bi-polar disorder is as high as 21-47.5 percent. The physician noted that the journal explained that a presence of OSA has an influence on the course of bi-polar disorder, to include the presence of obesity, which is a risk factor for sleep apnea, and is associated with the course of bi-polar disorder, as well as sleep disruptions. The physician then cited another journal which found that over half of a population in a study were high risk for OSA and those who were high risk scored significantly higher on measures of both depression and mania. The physician explained that the Veteran's records document night sweats relating to his mental condition since 2006 and reports of chronic sleep impairment related to his depression. The physician found that the effects of the Veteran's bi-polar disorder, including his depressive symptoms and chronic sleep impairment, contributed to the development of the Veteran's OSA. The examiner further explained that symptoms of the Veteran's bi-polar disorder can lead to a sedentary lifestyle, weight gain, and inactivity, which all contribute to the classic risk for OSA. The examiner acknowledged that smoking could cause a worsening of OSA. However, the Veteran's sleep disturbances have consistently been contributed to his psychological disturbances and his smoking is a contributing factor but not the cause. The physician stated there is a direct causal relationship which exists between the Veteran's bi-polar disorder and his sleep apnea. The Board acknowledges that a March 2021 VA examiner found the Veteran's sleep apnea is not directly related to his active-duty service due to there being no evidence of sleep disturbances in service or immediately after. However, the examiner did not consider whether the Veteran's sleep apnea was caused or aggravated by his service-connected bi-polar disorder. Therefore, there is no competent contrary opinion on the theory of secondary service connection. Therefore, the Board finds June 2021 private opinion to be of significant probative value in determining the Veteran's sleep apnea is due to his service-connected bi-polar disorder. The Board notes that the probative value of medical opinion evidence is based on the medical experts' personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the private physician showed knowledge of the Veteran's background and based the opinion on the Veteran's lay contentions, the physician's medical knowledge, review of his records, as well as extensive medical research. Additionally, the physician provided a very thorough rationale for the opinion rendered that is consistent with the medical evidence record. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Therefore, the Board concludes that the probative evidence of record is for the claim and the benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Increased Rating Disability ratings are determined by applying the criteria set forth in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2020). Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an Increased Rating: Diabetes Mellitus The Veteran's diabetes mellitus with erectile dysfunction is rated as 20 percent disabling under Diagnostic Code (DC) 7913 for Diabetes Mellitus. Under DC 7913, a 20 percent rating is provided when insulin and a restricted diet, or oral hypoglycemic agent and restricted diet are required to treat diabetes mellitus. A 40 percent rating is warranted when treatment of the disease requires the taking of insulin, a restricted diet, and regulation of activities. "Regulation of activities" is defined by Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." 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. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). A 60 percent rating requires the taking of 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. 38 C.F.R. § 4.119, DC 7913. Lastly, a total schedular (100 percent) rating for 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. Id. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119. In February 2014, the Veteran submitted a VA disability questionnaire. The examiner noted the Veteran was diagnosed with diabetes mellitus type 2 and his current treatment was prescribed oral hypoglycemic agents. The Veteran's condition did not require regulation of activities. The Veteran would visit his diabetic care provider less than two times per month. The Veteran had no episodes of ketoacidosis or hypoglycemia requiring hospitalization within the past 12 months. The Veteran did not have progressive unintentional weight loss or loss of strength attributable to his diabetes. The Veteran's diabetes did cause his erectile dysfunction and hypertension. In April 2017, the Veteran submitted another VA disability questionnaire dated March 2017. The examiner noted the Veteran's treatment was prescribed oral hypoglycemic agents. The Veteran did require regulation of activities as part of his medical management of his diabetes mellitus. The examiner reported the Veteran avoids strenuous physical activity due to risk of hypoglycemia or dyspnea and history of pulmonary embolism. The Veteran visits his diabetic care provider less than two times a month. The Veteran had no episodes of ketoacidosis or hypoglycemia requiring hospitalization within the past 12 months. The Veteran did not have progressive unintentional weight loss or loss of strength attributable to his diabetes. The Veteran's diabetes did cause or aggravate his erectile dysfunction, peripheral neuropathy, and hypertension. In October 2017, the Veteran attended a VA examination. The Veteran's diabetes was managed by restricted diet and prescribed oral hypoglycemic agents. The Veteran did not require regulation of activities as part of his medical management for diabetes. The Veteran visited his diabetic care provider less than two times a month for episodes of ketoacidosis and hypoglycemia. The Veteran had no episodes of ketoacidosis or hypoglycemia requiring hospitalization within the past 12 months. The Veteran did not have progressive unintentional weight loss or loss of strength attributable to his diabetes. In May 2020, the Veteran submitted a letter from his private physician dated April 2020. The physician stated that as of February 4, 2018, the Veteran's diabetes mellitus has required that he follow a diabetic diet, regulate his activities, and take insulin on daily basis. In December 2020 and March 2021, the Veteran was provided VA examinations. The Veteran's diabetes condition was managed by a restricted diet and insulin with more than one injection per day. The examiner also noted the Veteran required four injections of Januvia daily. Regulation of activities was not part of his diabetes mellitus management. The Veteran visited his diabetic care provider less than two times a month for episodes of ketoacidosis and hypoglycemia. The Veteran had no episodes of ketoacidosis or hypoglycemia requiring hospitalization within the past 12 months. VA treatment records and private medical record show periodic notations and treatment for the Veteran's diabetes. The Board notes that in an April 2020 private physician visit, the Veteran was noted as taking insulin, oral agents, and having a restricted diet. After review of the evidence of record, the Board finds that the Veteran's diabetes does not warrant a rating in excess of 20 percent prior to April 2, 2020. The Veteran did not require insulin and was only occasionally noted as needing regulation of activities. In fact, the Veteran's diabetes was primarily noted as not being well controlled with only prescribed oral hypoglycemic agents and a restricted diet. The Veteran further often reported minimal treatment visits for his diabetes and consistently reported having no ketoacidosis or hypoglycemic reactions/episodes. Moreover, at no time during this period had the evidence shown the Veteran required insulin to manage his diabetes. Thus, a rating in excess of 20 percent prior to April 2, 2020 is not warranted as the Veteran's condition mainly required oral hypoglycemic medication and a restrictive diet. See 38 C.F.R. § 4.119, DC 7913. However, the Board does find that a rating of 40 percent from April 2, 2020 is warranted. Although the December 2020 and March 2021 examiners found the Veteran did not require regulation of activities, the Veteran did now require insulin shots more than once a day and restricted diet. Further, the Veteran's private physician stated the Veteran had been requiring activity restrictions since February 2018 and was noted as needing regulation of activities in his March 2017 disability questionnaire. Therefore, the Board finds that the overall evidence shows the Veteran's diabetes had risen to the level of 40 percent during this appeal period. While the Board recognizes that the Veteran's physician stated the Veteran's diabetes has required regulation of activities and insulin since February 2018, the Board notes that the evidence of record does not show at any time prior to April 2020 that the Veteran required insulin shots, to include in his private and VA treatment records. Thus, a rating of 40 percent, but no higher, from April 2, 2020 is warranted. See 38 C.F.R. § 4.119, DC 7913. The Board also finds that a rating in excess of 40 percent is not warranted for any time on appeal. At no time has the Veteran had any episodes of ketoacidosis or hypoglycemia requiring hospitalization within the past 12 months or required weekly visits to his diabetic care provider. Therefore, a rating in excess of 40 percent since April 2, 2020 is not warranted. Id. The Board notes that the Veteran has been already service-connected and provided ratings for his diabetic associated conditions of diabetic peripheral neuropathy, diabetic nephropathy with hypertension, anemia, and atrial fibrillation. Regarding the Veteran's erectile dysfunction, the Veteran's condition has not resulted in deformity of his penis, and therefore, under the diagnostic criteria, does not warrant a separate rating. See 38 C.F.R. § 4.115b, DC 7522. The Board also acknowledges the Veteran's assertions that he is entitled to a higher rating because his symptoms are worse. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the Board has considered the Veteran's statements and finds them credible and consistent with the ratings assigned. Accordingly, the Board concludes that an evaluation in excess of 20 percent prior to April 2, 2020 is not warranted. However, a rating of 40 percent, but no higher, from April 2, 2020 is warranted. The benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Entitlement to an Earlier Effective Date: Erectile Dysfunction The Board finds that the Regional Office (RO) did not substantially comply with the terms of the Board's February 2021 remand. Stegall v. West, 11 Vet. App. at 270-71. In February 2021, the Board found the RO never issued a Statement of the Case (SOC) as to the Veteran's claim for entitlement to an earlier effective date for the award of service connection for erectile dysfunction. The Board remanded and instructed the RO to issue the required SOC for the pending claim. However, the RO still has not issued an SOC for the Veteran's claim. The Board notes that the Court held in Stegall that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with remand order. See Stegall, 11 Vet. App. at 268. Therefore, a remand is required in order for the Veteran to be provided with an SOC for the claimed condition. See Manlincon v. West, 12 Vet. App. 238 The matters are REMANDED for the following action: Issue a Statement of the Case for the Veteran's claim of entitlement to an earlier effective date for the award of service connection for erectile dysfunction. Ensure the Veteran is notified of the decision and of his rights to continue his appeal. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.