Citation Nr: 21068483 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-24 910 DATE: November 10, 2021 ORDER Entitlement to separate compensable rating for diabetic retinopathy is denied. Entitlement to separate compensable rating for diabetic nephropathy is denied. FINDINGS OF FACT 1. The Veteran has had not impairment of visual acuity or visual field due to diabetic retinopathy at any time during the appeal period. 2. The Veteran's kidney disability is not etiologically related to or otherwise caused by his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to separate rating for diabetic retinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, Diagnostic Codes 6006, 6040. 2. The criteria for entitlement to separate rating for diabetic nephropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.10, 4.21, 4.40, 4.45, 4.59. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal of a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the December 2019. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In December 2019, the Board remanded the claim of entitlement to a separate compensable rating for diabetic neuropathy for additional development. An August 2020 rating decision granted entitlement to service connection for diabetic neuropathy, ulnar nerve, upper right side. As this represents a total grant of the benefit sought on appeal with respect to this issue, it is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. 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). Separate Ratings Pursuant to Note 1 under Diagnostic Code 7913, the Board must assign separate ratings for any compensable complications of the Veteran's service-connected diabetes mellitus, type II. All noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119; Diagnostic Code 7913, Note (1). 1. Entitlement to separate compensable rating for diabetic retinopathy. The Veteran seeks entitlement to a separate compensable rating for diabetic retinopathy. The Veteran is not currently in receipt of a separate rating for diabetic retinopathy. Instead, the diabetic retinopathy is rated with his service-connected diabetes mellitus under Diagnostic Code 7913, for symptoms related to diabetes mellitus, as the diabetic retinopathy has been found to be noncompensable. The Veteran contends that the symptoms of diabetic retinopathy warrants a separate compensable rating. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation 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. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Diabetic retinopathy is rated pursuant to DC 6040, under the General Rating Formula of Diseases of the Eye. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under the former criteria, Retinopathy was rated pursuant to DC 6006, which instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. The General Rating Formula for DCs 6000 through 6009 instructed to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. Under the revised criteria, diabetic retinopathy has been given a separate code, Diagnostic Code 6066, which instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75 (a). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, visual acuity and visual field defects are evaluated separately, and then combined under the provisions of § 4.25. The Board notes there is no evidence that the Veteran has impairment of visual field Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76 (b) (1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76 (c). Diagnostic Code 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. The Board concludes that the Veteran did not have compensable complications related to diabetic retinopathy during the period on appeal. The Veteran was provided a VA examination in December 2016. The VA examiner noted that ocular health was within normal limits and no diabetic eye disease was noted. Upon examination the Veteran had bilateral uncorrected distance visual acuity of 20/200 and uncorrected near visual acuity of 10/200. His corrected right distance visual acuity was 20/50 and his corrected left distance acuity was 20/40 or better. The Veteran's bilateral corrected near visual acuity was 20/40 or better. During the previous twelve months the Veteran did not have any incapacitating episodes. The Veteran was provided a VA examination in September 2017. The VA examiner noted that the Veteran had moderate diabetic retinopathy in each eye, caused by or a result of diabetes mellitus. The Veteran did not report ophthalmological treatment. On examination, uncorrected distance for both eyes was 20/100, corrected vision for both eyes was 20/40 or better. The pupils were round, regular and responded to light. Slit lamp examination found normal conjunctiva, sclera, cornea, and iris. Fundus examination showed a few dot hemes. There were no incapacitating episodes during the previous 12 months attributable to any eye condition. The Veteran was provided a VA examination in August 2020. The VA examiner reviewed the record, interviewed the Veteran, and conducted an in-person examination. The VA examiner reported that the Veteran has a current diagnosis of age-related cataracts. The VA examiner noted that a fundoscopic exam shows no active diabetic retinopathy. The VA examiner opined that although the Veteran has a history of diabetic retinopathy with associated macular edema; he has been treated and the condition resolved. The examiner noted that this is typical variation during the course of disease progression and is related to diet control as well as current treatment efficacy. After review of the record, the Board finds that a separate compensable rating for bilateral diabetic retinopathy is not warranted. The evidence of record does not demonstrate that the retinopathy manifested by an impairment of central visual acuity or visual fields at any time during the pendency of the claim. The Veteran's corrected visual acuity is shown to be 20/40 or better in both eyes at all times and there is no noted visual field impairment. There is no evidence of incapacitating episodes or any scarring due to the retinopathy. The examiners found no functional impact due to the retinopathy. The Board has also considered whether the application of another Diagnostic Code would be more appropriate, however no other Diagnostic Code would warrant a higher rating for the Veteran. Further, the Veteran's other diagnosed eye conditions were found not to be related to service-connected disabilities. While the Veteran is competent as a layperson to report subjective symptoms like blurry version, his lay statement alone are not enough to establish the presence of "compensable complications" within the meaning of Note 1 under Diagnostic Code 7913. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board therefore finds that the criteria for a separate rating for diabetic retinopathy has not been warranted at any time during the rating period. As the preponderance of the evidence is against the assignment of a separate compensable rating for diabetic retinopathy, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Ver. App. 49 (1990). 2. Entitlement to separate compensable rating for diabetic nephropathy. The Veteran seeks entitlement to a separate compensable rating for diabetic nephropathy. The question for the Board is whether the Veteran has a compensable complication of a kidney condition that is due to his service-connected diabetes mellitus. The Veteran was provided a VA examination related to his kidney condition in July 2020. The VA examiner reviewed the record, interviewed the Veteran, and conducted an in-person examination. The VA examiner diagnosed the Veteran with chronic renal disease. The VA examiner determined that the Veteran did not have a current diagnosis of diabetic nephropathy. The VA examiner explained that the Veteran's chronic kidney disease is more likely due to long standing hypertension, which was diagnosed several years prior to his diabetes diagnosis. The Board finds the of the July 2020 examination and opinion to be highly probative because it relies on sufficient facts and data, provides a rationale for the opinion, and contains sound reasoning supported by the treatment records. Nieves-Rodriguez, 22 Vet. App. 295 (2008). The examiner discussed the Veteran's medical history and the results of diagnostic testing, supporting his opinion of an alternative etiology for the Veteran's symptoms for his chronic kidney disease. The rationale for the examiner's opinion was based on accurate facts from the Veteran's medical records along with medical principles as to why the history, complaints, and findings were not the result of compensable complication from his service-connected diabetes mellitus. Given the totality of the evidence and the medical opinions, the preponderance of the evidence establishes that the Veteran's chronic kidney disease is not due to the service-connected diabetes mellitus and, so, a preponderance of the evidence is against the assignment of a separate compensable rating for diabetic nephropathy. Consequently, the benefit of the doubt rule is not for application and the claim must be denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.