Citation Nr: 21071597 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-25 577A DATE: November 30, 2021 ORDER Entitlement to an increased disability evaluation for diabetes mellitus, Type-II, with erectile dysfunction, currently rated as 20 percent disabling, is denied. REMANDED Entitlement to an effective date prior to November 6, 2012 for the grant of service connection for diabetic nephropathy is remanded. Entitlement to an effective date prior to November 6, 2012 for the grant of service connection for peripheral neuropathy of the right and left lower extremities is remanded. Entitlement to an increased disability evaluation for diabetic nephropathy, initially rated as 60 percent disabling, is remanded. Entitlement to an increased disability evaluation for peripheral neuropathy of the right lower extremity, initially rated as 10 percent disabling, is remanded. Entitlement to an increased disability evaluation for peripheral neuropathy of the left lower extremity, initially rated as 10 percent disabling, is remanded. FINDING OF FACT The Veteran's diabetes mellitus, Type-II, with erectile dysfunction requires an oral hypoglycemic agent and restricted diet, but not regulation of activities. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for diabetes mellitus, Type-II, with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from April 1965 to April 1967. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the claim for an increased rating for diabetes mellitus, Type II, a July 2020 rating decision awarded service connection for erectile dysfunction as part and parcel of the Veteran's diabetes mellitus, Type II. The Veteran's disability was recharacterized as diabetes mellitus, Type II, with erectile dysfunction, and the 20 percent disability evaluation was continued. In April 2020 and May 2021, in pertinent part, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in September 2021. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist The Veteran has not 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). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased disability evaluation for diabetes mellitus, Type-II, with erectile dysfunction, currently rated as 20 percent disabling. The Veteran's Type-II diabetes mellitus with erectile dysfunction is rated as 20 percent disabling pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. According to Diagnostic Code 7913, a 20 percent rating is warranted where the diabetes requires insulin and a restricted diet, or hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes requiring 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 100 percent rating is warranted for diabetes requiring more than one daily injection of insulin, restricted diet, and regulation of 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 Within the criteria for a 100 percent rating, "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction "and" is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). In this case, the evidence reflects that the Veteran's diabetes mellitus requires an oral hypoglycemic agent and a restricted diet. The dispositive question is therefore whether it also requires regulation of activities. The Board finds that it does not. At the July 2016 and January 2021 VA examinations, the VA examiners noted, after examining the Veteran and reviewing the claims file, that the Veteran's diabetes was treated by restricted diet and oral hypoglycemic agent. Both VA examiners clearly indicated that the Veteran did not require regulation of activities; neither examination report otherwise indicated that the Veteran avoided any activities due to his diabetes mellitus. Likewise, the Board observes that treatment records indicate that the Veteran's diabetes mellitus is well controlled without regulation of activities, and that his diabetes mellitus has remained stable during the rating period on appeal. The Veteran has not needed to regulate his physical activities and has not lost any body weight due to diabetes mellitus during the appeal period. The January 2021 VA examiner observed that the Veteran did not experience progressive unintentional weight loss or loss of strength due to his diabetes mellitus. As such, the Board finds that the medical evidence does not support a finding of "avoidance of strenuous occupational and recreational activities." The Veteran did not indicate that any physician had told him to regulate his activities due to his diabetes mellitus, and the Veteran's VA treatment records do not reflect that any of his treating providers told him to regulate his activities due to his diabetes mellitus. The Board acknowledges the Veteran's contentions that his diabetes mellitus has worsened. However, the weight of the evidence is against a finding that the Veteran's diabetes mellitus requires regulation of activities. As the higher ratings all require regulation of activities, the preponderance of the evidence is against a rating higher than 20 percent for the Veteran's Type-II diabetes mellitus with erectile dysfunction. The benefit of the doubt doctrine is thus not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to an effective date prior to November 6, 2012 for the grant of service connection for diabetic nephropathy is remanded. 2. Entitlement to an effective date prior to November 6, 2012 for the grant of service connection for peripheral neuropathy of the right and left lower extremities is remanded. 3. Entitlement to an increased disability evaluation for diabetic nephropathy, initially rated as 60 percent disabling, is remanded. 4. Entitlement to an increased disability evaluation for peripheral neuropathy of the right lower extremity, initially rated as 10 percent disabling, is remanded. 5. Entitlement to an increased disability evaluation for peripheral neuropathy of the left lower extremity, initially rated as 10 percent disabling, is remanded. The RO, in an April 2018 rating decision, granted the Veteran's claims of entitlement to service connection for diabetic nephropathy and peripheral neuropathy of the right and left lower extremities. A 60 percent disability evaluation was assigned for the Veteran's diabetic nephropathy and a 10 percent disability evaluation was assigned per lower extremity for the Veteran's peripheral neuropathy; an effective date of November 6, 2012 for each grant of service connection. The Veteran was notified of the rating decision by means of a May 2018 letter. In May 2018, the Veteran submitted a VA Form 21-0958, Notice of Disagreement, indicating that he disagreed with the RO's April 2018 rating decision. The Veteran, through his representative, indicated that he disagreed with April 2018 rating decision; specifically, the Veteran indicated that he disagreed with the disability evaluations and effective dates for his diabetic nephropathy and peripheral neuropathy of the right and lower extremities. Because the Veteran filed a notice of disagreement as to these issues, the Veteran was entitled to a statement of the case addressing the issues of entitlement to increased disability evaluations for his service-connected diabetic nephropathy and peripheral neuropathy of the right and left lower extremities, as well as the issues of entitlement to earlier effective dates for the awards of service connection. When a claimant files a notice of disagreement to an issue, the Veteran is entitled to a statement of the case addressing the issue. See 38 C.F.R. § 3.2600. When a claimant has filed a notice of disagreement and there is no statement of the case on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. The RO should issue a statement of the case regarding the issues of entitlement to increased disability evaluations for the Veteran's service-connected diabetic nephropathy and peripheral neuropathy of the right and left lower extremities, as well as issues of entitlement to earlier effective dates for the awards of service connection. The appellant and his representative should be advised that, for the Board to have jurisdiction of these matters, a timely substantive appeal must be filed. 2. The claim should be returned to the Board upon certification of all remaining issues on appeal. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.