Citation Nr: 21076087 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-04 414 DATE: December 22, 2021 ORDER Entitlement to a rating in excess of 20 percent for Diabetes Mellitus with erectile dysfunction is denied. FINDINGS OF FACT 1. The Veteran's diabetes is not shown to require regulation of activities. 2. The Veteran's erectile dysfunction is not shown to have resulted in removal of half or more of his penis, resulted in removal of the glans of the penis, resulted in any deformity of the penis either interiorly or exteriorly, or resulted in any voiding dysfunction. CONCLUSION OF LAW The criteria for a schedular rating in excess of 20 percent for diabetes with erectile dysfunction have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1970 to February 1972. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veteran's Affairs (VA) Regional Office (RO). In August 2018, the Board denied a rating in excess of 20 percent for diabetes with erectile dysfunction. The Veteran subsequently appealed the denial of such issue to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court granted a Joint Motion of Remand (JMR) that vacated the Board's August 2018 decision to the extent that the Board failed to provide an adequate rationale for its denial and did not provide the Veteran's with an adequate VA examination for his erectile dysfunction. In March 2020 the Board remanded the claim for further development. In January 2021, the Board again denied a rating in excess of 20 percent for his diabetes with erectile dysfunction. The Veteran subsequently appealed the denial of such issue to the Court. In August 2021, the Court granted a JMR that vacated the Board's January 2021 decision to the extent that the Board failed to provide the Veteran a full 90 days to review and respond to the December 2020 VA examination prior to the issuance of the Board decision. Increased Rating The Veteran was originally granted service connection in a June 2010 rating decision by the RO. He did not appeal this decision nor was new and material evidence added to the file within one year of issuance. As a result, the June 2010 rating decision became final. On April 30, 2015, the Veteran submitted a new claim for an increased rating in excess of 20 percent for his diabetes with erectile dysfunction. As a result, the period on appeal begins on the date of claim, April 30, 2015. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's diabetes is rated under Diagnostic Code 7913. A 20 percent rating is assigned when diabetes requires either insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned when diabetes requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes that requires 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 assigned for diabetes that requires 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. Because of the successive nature of the rating criteria for diabetes, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Stated another way, if a component is not met at any one level, a Veteran can only be rated at the level that did not require the missing component. Id. Competent medical evidence is required to establish "regulation of activities," namely, avoidance of strenuous occupational and recreational activities, for a 40 percent rating under DC 7913. See Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). 1. Entitlement to a rating in excess of 20 percent for Diabetes Mellitus with erectile dysfunction. The Veteran asserts due to the required use of insulin for his diabetes, he is entitled to a 40 percent disability rating for his diabetes with erectile dysfunction. See August 2015 notice of disagreement. The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran's diabetes mellitus required only restricted diet and one or more daily injections of insulin during the period on appeal. As an initial matter, the Board notes the June 2019 JMR stated the Board should address the Veteran's medical record dated in April 2010. However, as stated above the appeal period for this claim begins in April 2015. As a result, a medical note from April 2010 is not probative to the disability level of the Veteran's diabetes during the appeal period before the Board. The Veteran's VA outpatient records from May 2015 to December 2019 show the Veteran was consistently encouraged to increase his physical activity. In September 2019 and December 2019, the Veteran was encouraged to do at least 150 minutes of walking per week. The importance of regular exercise and physical activities was noted to the Veteran. There are no notations in the Veteran's VA medical records that state the Veteran should avoid strenuous occupational and recreational activities. The Veteran underwent a VA examination in June 2015 for his diabetes. The examiner noted the Veteran's medical history showed he was on a restricted diet, he was prescribed oral hypoglycemic agents, and was then prescribed insulin at one injection per day. When specifically asked, "does the Veteran require regulation of activities as part of medical management of diabetes mellitus" the examiner stated "no." No episodes of ketoacidosis nor hypoglycemia requiring hospitalization in the 12 months prior to the examination were noted. No additional complications, other than erectile dysfunction, were noted. The Board finds this opinion probative, as it provided a clear conclusion with supporting data based on a review of the Veteran's record. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In August 2015, the Veteran submitted a notice of disagreement in which he asserts due to his insulin use, he is entitled to a 40 percent rating for his diabetes. He asserts this again in an October 2015 statement in support of his claim. In his January 2016 VA Form 9, the Veteran again states his insulin use should result in a 40 percent rating. The Veteran does not assert his activity was medically restricted in any of the above-mentioned documents. The Veteran also underwent a VA examination in August 2020 for his diabetes. The examiner noted the Veteran was prescribed 1 insulin injection per day. However, the examiner noted the Veteran did not require regulation of activities as part of the medical management of his diabetes. No ketoacidosis or hypoglycemic reactions were noted in the past 12 months. No loss of strength nor weight was documented. No additional complications related to his diabetes, other than erectile dysfunction, were noted. The examiner stated that all of the Veteran's available records were reviewed and considered in making the above determinations. The Veteran's representative asserts in a November 2021 brief that the August 2020 VA examination is not adequate as the examiner did not provide a specific rationale for his findings or address the aforementioned 2010 medical note. However, as explained above, the 2010 record is not probative as to the current appeal period. Moreover, the examiner stated that he reviewed the Veteran's record and considered the evidence in providing all opinions noted during the examination. As the criteria for entitlement to a 40 percent rating for diabetes, in this case, is dependent on establishing that the Veteran's activities were restricted based on medical evidence, the Board finds this opinion adequate and probative, as it provided a clear conclusion with supporting data based on a review of the Veteran's record. Stefl, 21 Vet. App. 120; Nieves-Rodriguez, 22 Vet. App. 295; Camacho, 21 Vet. App. 360. While the Veteran is competent to report on the observable symptoms of his condition, because he is not a medically trained professional, he is not medically competent to assert his diabetes required restricted activity without any accompanying medical evidence that such a restriction was necessary during the period in question. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical evidence of record is against a finding that regulation of activities was required during the period on appeal. The Board again notes that while the Veteran's physician reported that the Veteran should avoid strenuous activity in April 2010, greater weight is given to the more recent medical records dated after the Veteran's April 2015 increased rating claim that show the Veteran was encouraged to lose weight and exercise. In addition, both the June 2015 and August 2020 VA examiners indicated that the Veteran did not require regulation of activities. As such, a rating in excess of 20 percent cannot be assigned in the absence of regulation of activities, which has not been shown. Camacho, 21 Vet. App. 360. Regarding the Veteran's erectile dysfunction, a June 2010 rating decision granted special monthly compensation based on the loss of use of a creative organ effective August 5, 2009. The rating schedule provides three codes for penile impairment. Removal of half or more of the penis is rated as 30 percent disabling, or is to be rated based on voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7520. Removal of the glans of the penis is rated as 20 percent disabling, or is to be rated based on voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7521. Deformity of the penis with loss of erectile power is rated as 20 percent disabling. 38C.F.R. §4.115b, Code 7522. In every instance where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. There is no schedular rating for loss of erectile power alone. Although Diagnostic Code 7522 requires a "deformity" for a compensable rating, VA has not expressly defined this term, but the Court has found that the ordinary meaning of this word is appropriate, noting that a "deformity" is a "distortion of any part or general disfigurement of the body." Dorland's Illustrated Medical Dictionary 478 (32d ed. 2012). The Court held that "deformity" under Diagnostic Code 7522 means a distortion of the penis, either internal or external. 38 C.F.R. § 4.115(b), Diagnostic Code 7522. See Williams v. Wilkie, 30 Vet. App. 134 (2018). The Veteran underwent a VA examination in June 2015 for his erectile disfunction. However, the examiner failed to examine the Veteran's penis on the basis that such an examination was not relevant to his condition. However, a finding of penile deformity is a prerequisite to a compensable rating under DC 7522. As a result, the examination is inadequate for VA purposes and afforded no probative weight. The Veteran was provided an additional VA examination in August 2020 for his erectile disfunction. The Veteran reported his only current symptom was the inability to obtain an erection. No renal dysfunction, voiding issues, nor infections were noted. During the physical exam, the Veteran's penis, testes, and epididymis were all noted to be normal. The examiner did not indicate that the Veteran had undergone any removal of half or more of his penis. The examiner stated all available records were reviewed and considered while completing the examination. The Board finds this opinion probative, as it provided a clear conclusion with supporting data based on a review of the Veteran's record. Stefl, 21 Vet. App. 120; Nieves-Rodriguez, 22 Vet. App. 295. The Veteran's treatment records do not show that he has undergone any removal of half or more of his penis, has undergone removal of the glans of the penis, or has any deformity of the penis. There is also no showing that there is any internal or external penile deformity. The Veteran has not described any symptoms that would suggest a penile deformity either internally or externally. Finally, there is no showing that the Veteran has voiding dysfunction. The claims file does not contain evidence that the Veteran's erectile dysfunction has resulted in removal of half or more of his penis, removal of the glans of the penis, any deformity of the penis, or any voiding dysfunction. As such, a separate compensable rating cannot be assigned. The March 2020 Board decision included remand directives to obtain the Veteran's private medical records. In March 2020, VA requested a VA Form 21-4142a from the Veteran. He returned the VA Form 21-4142a in April 2020. However, he was notified in May 2020 he still required a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs. VA requested he return the enclosed VA Form 21-4142 and VA Form 21-4142a. A follow up request was made by VA in June 2020. In July 2020, the Veteran's representative submitted a VA Form 21-4142; however, the document was not signed by the Veteran. No additional forms have been received from the Veteran or his representative. Additionally, the Veteran's representative in a November 2021 correspondence stated, "there is no reason to remand [the Veteran's] claim" as a 40 percent rating should be provided based on the evidence of record. While VA has a statutory duty to assist in developing evidence pertinent to a claim, a Veteran also has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist a Veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). Therefore, the Board finds there has been substantial compliance with its prior remand directive and an additional attempt to obtain the Veteran's records is not warranted. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.