Citation Nr: 21074734 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-04 689 DATE: December 16, 2021 ORDER A disability rating in excess of 20 percent for diabetes mellitus is denied. A disability rating in excess of 10 percent prior to October 2, 2017 and in excess of 20 percent therefrom for diabetic retinopathy with bilateral cataracts and bilateral glaucoma is denied. FINDINGS OF FACT 1. The Veteran's diabetes mellitus results in treatment with oral medication, daily insulin injections, and dietary restrictions, but has not led to regulation of activities, including occupational and recreational activities. 2. Prior to October 2, 2017, the Veteran's glaucoma resulted in visual field defect with remaining visual field of 46 to 60 degrees in each eye; after October 2, 2017, it resulted in visual field defect with remaining visual field less than 46 degrees in the right eye and remaining visual field of 46 to 60 degrees in the left eye, or alternatively, the Veteran had loss of both nasal half and superior half of visual field bilaterally as a result of his glaucoma. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913. 2. The criteria for a rating in excess of 10 percent prior to October 2, 2017 and in excess of 20 percent thereafter for diabetic retinopathy with cataracts and glaucoma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.75-4.79, DC 6013. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to December 1969. This case comes from a June 2015 rating decision. In February 2019, the Veteran testified at a Board hearing. The Board remanded this matter in February 2019, December 2020, and September 2021. During the pendency of the appeal, in a January 2021 rating decision, the RO granted an earlier effective date of February 2, 2015 for a separate evaluation of 10 percent for diabetic retinopathy with bilateral cataracts. However, as that award did not constitute a complete grant of the benefit sought on appeal, and the Veteran has not indicated satisfaction with the assigned rating, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-9 (1993). The Board has limited its discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). INCREASED RATING Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Rating in excess of 20 percent for diabetes mellitus. Specific Legal Criteria The Veteran's diabetes mellitus is rated under 38 C.F.R. § 4.119, DC 7913. DC 7913 provides for a 10 percent rating for diabetes manageable by a restricted diet only; a 20 percent rating is warranted for diabetes requiring one or more daily injection of insulin and restricted diet, or requiring an oral hypoglycemic agent and restricted diet; a 40 percent rating is warranted for diabetes requiring one or more daily injection of insulin, restricted diet, and regulation of activities, defined within the diagnostic code as avoidance of strenuous occupational and recreational activities; a 60 percent rating is warranted for diabetes requiring one or more daily injection of 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; and 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. Note 1 following DC 7913 states to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100-percent evaluation, but noncompensable complications are considered part of the diabetic process under DC 7913. Facts In February 2015, the Veteran submitted a claim for service connection for cataracts as secondary to service-connected diabetes mellitus with diabetic retinopathy. The current appeal for a higher evaluation for diabetes mellitus originates from this claim. In the June 2015 rating decision, the RO continued an evaluation of 20 percent for diabetes mellitus with retinopathy and bilateral cataracts because it found that his diabetes required insulin and restricted diet, or oral hypoglycemic agent and restricted diet and his bilateral cataracts warranted a noncompensable rating. In a November 2015 notice of disagreement (NOD), the Veteran sought a 30 percent or 40 percent evaluation for his diabetes. Subsequent to a December 2015 statement of the case (SOC), the Veteran submitted a VA Form 9 in January 2016, in which he reported he was entitled to a higher rating for use of insulin and Lantus Solostar with special diet. At the February 2019 Board hearing, the Veteran testified that he was on two type of insulin, Tresiba and a fast-acting insulin as well as on restricted diet for management of diabetes. His spouse indicated that the Veteran's activities were regulated due to probably a combination of both functional limitation of his knee disability and diabetes. The Veteran further stated that he believed his diabetes had worsened. Pursuant to the February 2019 Board remand, the Veteran underwent a VA examination in October 2019. The examination reflects that the Veteran's diabetes required more than one injection of insulin per day and that it did not require regulation of activities as part of medical management of diabetes. He visited his diabetic care provider for episodes of ketoacidosis or hypoglycemia less than 2 times per month, and he did not have hospitalization due to either ketoacidosis or hypoglycemic reactions. Treatment records during the appeal period are associated with the claims file. A Mach 2014 letter from his private physician states that the Veteran's diabetes was managed with multiple daily injections of insulin, consisting of a long-acting insulin Lantus at bedtime and a fast-acting insulin Humalog with meals. The physician reported that the Veteran also needed to take metformin to control his blood sugars. A February 2021 VA pharmacy note reflects that the Veteran's diabetes has been managed with daily injections of insulin. During this clinical visit, the Veteran reviewed nutrition therapy and physical activity/exercise; he was advised to avoid carbohydrates with high glycemic index and encouraged to do moderate aerobic exercises and limit sedentary activity to 90 minutes at a time as much as possible during the day. Analysis The threshold requirement for a 40 percent rating, and above, is regulation of activities. See Camacho v. Nicholson, 21 Vet. App. 360 (2007); 38 C.F.R. § 4.119, DC 7913. In order to meet a higher rating of 40 percent, the Veteran must need to avoid strenuous occupational or recreational activities due to his diabetes. While the evidence shows that the Veteran requires medication, including daily insulin, and is placed on a restricted diet and is encouraged to be active, the evidence does not show that he has been prescribed or advised to avoid strenuous occupational and recreational activities due to his diabetes mellitus. Moreover, the medical evidence tends to indicate that his diabetes mellitus does not restrict his activities and he has been advised to be more active in general. In addition, there were no periods of ketoacidosis or hospitalization for treatment of his diabetes mellitus, and both non-VA and VA treatment records indicated his diabetes is well-controlled. Therefore, the Board finds that the evidence does not support a rating in excess of 20 percent for the Veteran's service-connected diabetes mellitus, as his diabetes has not resulted in regulation of activities. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, a rating in excess of 20 percent for diabetes mellitus is not warranted. 2. Rating in excess of 10 percent prior to October 2, 2017 and in excess of 20 percent thereafter for diabetic retinopathy with bilateral cataracts and bilateral glaucoma. Specific Legal Criteria The Veteran's diabetic retinopathy with bilateral cataracts and bilateral glaucoma is rated 10 percent prior to October 2, 2017 under DC 6027 and 20 percent thereafter under DC 6012, for angle-closure glaucoma. DC 6013 for open-angle glaucoma is more appropriate for evaluating the Veteran's open-angle glaucoma because he is not diagnosed with angle-closure glaucoma. Therefore, the Board evaluates his open-angle glaucoma under DC 6013, not DC 6012. Additionally, the Veteran has been service-connected for diabetic retinopathy and bilateral cataracts (status post cataract surgery in the right eye and pre-surgery in the left eye); the Board considers evaluation under DC 6006 for retinopathy and DC 6027 for cataracts. 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. 83 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 criteria prior to May 2018, DC 6013 instructed to evaluate pursuant to visual impairment due to open-angle glaucoma. Under the post May 2018 criteria, DC 6013 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. Both the pre- and post- May 2018 criteria under DC 6013 allow a minimum 10 percent rating if continuous medication was required. As for retinopathy, DC 6006, in both pre- and post-May 2018 regulations, directs the rater to evaluate retinopathy under the General Rating Formula for Diseases of the Eye. Here, the difference between the two versions is definition of "incapacitating episodes" as stated below. As for cataracts, the former criteria for DC 6027 instructed to evaluate based on visual impairment if preoperative and if postoperative and replacement lens is present (pseudophakia). The revised criteria for DC 6027 instruct to evaluate based on the General Rating Formula for Diseases of the Eye if preoperative and if postoperative and replacement lens is present. The General Rating Formula for DCs 6000 through 6009, effective prior to May 2018, evaluated the disability 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. A note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79 (2017). On the other hand, the General Rating Formal for Diseases of the Eye, effective after May 2018, 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. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, DC 6061-6091. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required in the May 2018 version. There are otherwise no substantive changes to how those types of visual impairment are rated in any version of the regulations. 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). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. Id. § 4.75(b). Examinations of visual field or muscle function will be conducted only when medically indicated. Id. 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 under DCs 6061-6066. 38 C.F.R. § 4.76(c). Evaluation of visual field is based on the remaining field of vision in each eye. 38 C.F.R. § 4.77. The table of Ratings for Impairment of Visual Fields under DCs 6080 and 6081 provides ratings for visual field loss. The first half of the table provides ratings based on loss of an entire half of field of vision in an eye. The second half of the table provides ratings based on the average concentric contraction of the visual field of each eye. Evaluation of visual field is based on the remaining field of vision in each eye. 38 C.F.R. § 4.79. Lastly, evaluations of visual impairment of muscle function is based on the degree of diplopia. 38 C.F.R. § 4.78. Ratings for impairment of muscle function is provided under DCs 6090 and 6091. Facts As noted above, in February 2015, the Veteran submitted a claim for service connection for cataracts as secondary to service-connected diabetes mellitus with diabetic retinopathy. The current appeal for a higher rating for diabetic retinopathy with cataracts and glaucoma originates from this claim. In the June 2015 rating decision, the RO assigned a noncompensable evaluation for service-connected eye disabilities, effective February 5, 2015, the date his claim was received. Subsequently, in a January 2021 rating decision, the RO assigned a 10 percent rating for diabetic retinopathy with bilateral cataracts effective February 2, 2015. In April 2015, the Veteran underwent a VA examination. He was diagnosed with bilateral glaucoma, pseudophakia of the right eye, and cataract in the left eye. Corrected distance visual acuity was 20/40 or better in each eye. No diplopia was found. The average remaining visual field was 47.3 degrees in the right eye and 53.9 degrees in the left eye A June 2015 addendum opinion states that the visual field defect is caused by glaucoma. No scarring was noted. The Veteran did not have any incapacitating episode in the past 12 months. No functional impact on his ability to work was found. A March 2016 VA treatment record indicates that the Veteran was taking Cosopt and Brimonidine for his glaucoma. Corrected visual acuity for distance was 20/30 in the right eye and 20/40 for the left eye. Mild diabetic retinopathy was noted in ocular history, and pseudophakia in the right eye and nuclear sclerotic cataract in the left eye were noted. An October 2017 VA examination reflects a diagnosis of glaucoma, diabetic retinopathy, pseudophakia of the right eye, and cataract of the left eye. Corrected distance visual acuity was 20/40 or better in each eye. No diplopia was found. The average remaining visual field was 41.5 degrees in the right eye and 53.6 degrees in the left eye. No scarring was noted. The Veteran did not have any incapacitating episode in the past 12 months. No functional impact on his ability to work was found. During the February 2019 Board hearing, the Veteran testified that he did not have eye problems at the moment. An October 2019 VA examination reflects a diagnosis of diabetic retinopathy, cataract, glaucoma, and pseudophakia of the right eye. His glaucoma was treated with Cosopt, Brimonidine, and Rhopressol. Corrected distance visual acuity was 20/20 or better in the right eye and 20/40 in the left eye. No diplopia was found. The average remaining visual field was 46.1 degrees in the right eye and 47.4 degrees in the left eye. The Veteran had loss of nasal half of visual field and loss of superior half of visual field in both eyes. No scarring was noted. The Veteran did not have any incapacitating episode in the past 12 months. No functional impact on his ability to work was found. The non-VA treatment records dated August 2020 indicates that the Veteran's corrected distance visual acuity worsened. However, later, VA treatment records dated January and March 2021 indicate that the Veteran was seen for refraction to get a new prescription for glasses to correct the vision. It appears that a treating clinician recommended combined cataract and glaucoma surgery of the right eye in January 2020. However, the evidence of record indicates that the Veteran has not had such surgery to the present. Analysis For the following reasons, the Veteran's service-connected eye disabilities warrant a 10 percent rating, but no higher, prior to October 2, 2017 and a 20 percent rating, but no higher, after October 2, 2017. The evidence demonstrates that the Veteran's service-connected eye disabilities did not result in impairment of visual acuity or impairment of muscle function during the entire appeal period. Moreover, although the Veteran was regularly seen for checkup of his eye disabilities, he had never had any incapacitating episode as defined by either version of the General Rating Formula as a result of his service-connected eye disabilities during the entire appeal period. However, the evidence shows that the Veteran's service-connected glaucoma has been treated with continuous medications and has resulted in visual field defect during the appeal period. In particular, prior to October 2, 2017, the Veteran's glaucoma resulted in visual field defect, which warrants a 10 percent rating under DC 6080 corresponding to the visual field defect with remaining field of 46 degree to 60 degrees bilaterally (47 degrees in the right eye and 54 degrees in the left eye). After October 2, 2017, the Veteran's glaucoma resulted in visual field defect that warrants a 20 percent rating under DC 6080 corresponding to the defect with remaining field of 42 degrees in the right eye and 54 degrees in the left eye. It appears that the remaining visual field somewhat increased in the October 2019 VA examination. But this examination also reflects that the Veteran has had loss of both nasal half and superior half of visual field bilaterally. Bilateral loss of nasal half of visual field and loss of superior half of visual field warrants a 10 percent rating each under DC 6080, with combined rating of 20 percent. In sum, a 10 percent rating, but no higher, prior to October 2, 2017 and a 20 percent thereafter is warranted for glaucoma based on visual field defect. The preponderance of the evidence is against any higher or separate rating; thus, the benefit-of-the-doubt doctrine is not further applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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.