Citation Nr: 21077162 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 13-12 790 DATE: December 28, 2021 ORDER A rating in excess of 20 percent for diabetes mellitus (DM) is denied. A rating in excess of 20 percent for peripheral neuropathy of the left upper extremity associated with DM is denied. A rating in excess of 20 percent for peripheral neuropathy of the right upper extremity associated with DM is denied. A rating in excess of 10 percent for peripheral neuropathy of the left lower extremity associated with DM is denied. A rating in excess of 10 percent for peripheral neuropathy of the right lower extremity associated with DM is denied. A compensable rating for voiding dysfunction associated with DM is denied. A compensable rating for erectile dysfunction (ED) associated with DM is denied. REMANDED Entitlement to service connection for a heart condition is remanded. THE VETERAN'S CONTENTIONS The Veteran seeks entitlement to an increased rating for his DM due to his insulin use. See July 2014 Fully Developed Claim; February 2020 Informal Hearing Presentation (IHP); June 2021 IHP; November 2021 IHP. In the Veteran's March 2015 notice of disagreement (NOD), he reported that he took shots of insulin once per day in the evenings. In the Veteran's December 2016 VA Form 9, he contended that, in addition to insulin and restricted diet, his DM required regulation of activities. The Veteran also seeks a separate compensable rating for ED. See June 2021 IHP; November 2021 IHP. The Veteran also contends that service connection is warranted for a heart condition, which he claims as ischemic heart disease. See September 2009 claim; February 2013 supplemental claim; February 2020 IHP. He asserts that the condition is due to Agent Orange exposure, and that he has had it since 1969. See December 2009 statement in support of claim; April 2013 VA Form 9. The Veteran noted that he was removed from flight status based on his examination while on active duty. See February 2018 IHP. He stated that while undergoing a stress test and Cardiolite examination as part of his annual flight physical in 1973 in Fort Sam, Houston, he was told that he had right bundle branch block. He stated that his flight orders were held for two months then waived. See May 2010 VA examination report. FINDINGS OF FACT 1. The Veteran's DM requires an oral hypoglycemic agent, daily use of insulin, and regulation of diet, but does not require regulation of activities. 2. The Veteran's peripheral neuropathy of the upper and lower extremities is manifested by no more than mild incomplete paralysis. 3. The Veteran's voiding dysfunction is manifested by difficulty urinating and hesitancy at times. He does not require the use of absorbent materials, and he does not have increased urinary frequency or marked obstructive symptomatology. 4. The Veteran's ED is manifested by subjective complaints of inability to maintain an erection without objective evidence of penile deformity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for DM are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§, 4.1, 4.2, 4.7, 4.10, 4.119, DC 7913. 2. The criteria for a rating in excess of 20 percent for left upper extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§, 4.1, 4.2, 4.7, 4.10, 4.124a, DC 8613. 3. The criteria for a rating in excess of 20 percent for right upper extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§, 4.1, 4.2, 4.7, 4.10, 4.124a, DC 8613. 4. The criteria for a rating in excess of 10 percent for left lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§, 4.1, 4.2, 4.7, 4.10, 4.124a, DC 8520. 5. The criteria for a rating in excess of 10 percent for right lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§, 4.1, 4.2, 4.7, 4.10, 4.124a, DC 8520. 6. The criteria for a compensable rating for voiding dysfunction associated with DM are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§, 4.1, 4.2, 4.7, 4.10, 4.115a, DC 7542 7. The criteria for a separate compensable rating for ED are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.25, 4.115b, DC 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from August 1965 to October 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in January 2011 and November 2014 from the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran requested a Board hearing in his April 2013 VA Form 9. However, the Veteran later withdrew this request in a September 2014 statement. He did not request for the hearing to be rescheduled, and he has not submitted any additional requests for a hearing. Thus, there are no outstanding Board hearing requests. The issue of service connection for a heart condition was previously remanded by the Board in March 2018 and April 2020. In the April 2020 decision, the Board also denied entitlement to a rating in excess of 20 percent for DM and entitlement to a separate compensable rating for ED. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). A joint motion for partial remand (JMPR) was filed in March 2021. In the March 2021 JMPR, the parties agreed that the Board failed to fulfill the duty to assist and to provide adequate reasons or bases regarding five specific record requests. The parties' determined that, on remand, the Board must provide authorization releases to the Veteran and obtain outstanding treatment records from: 1) Scenic Mountain Hospital, 2) any nursing or veterans' long-term care facility that the Veteran may have resided in or received treatment in, 3) Dr. M, 4) Southwest Medical Extended Care facility, and 5) VistA. The Court granted to parties' JPMR and remanded the issues of entitlement to a rating in excess of 20 percent for DM and entitlement to a separate compensable rating for ED for adjudication consistent with the instructions outlined in the JMPR. In August 2021, the Board remanded the issues of entitlement to a rating in excess of 20 percent for DM and entitlement to a separate compensable rating for ED in order to obtain the records described in the March 2021 JPMR. 1. Diabetes Mellitus As an initial matter, the Board finds that there has been substantial compliance with the August 2021 remand directives. An August 2021 letter was sent to the Veteran requesting that he obtain records from Scenic Mountain Hospital, any nursing or veterans' long-term care facility that the Veteran may have resided in or received treatment in, Dr. M, and Southwest Medical Extended Care facility or complete and return a VA Form 21-4142 authorization for VA to obtain these records. An authorization form was not completed by the Veteran. The Veteran's representative stated that the Veteran was unable to secure and submit any additional evidence in further support of his appeal and thus requested a continued review of the case by the Board of Veterans' Appeals. The Board notes that the duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, the Veteran must cooperate in obtaining the evidence necessary to adjudicate the Veteran's claim. See, e.g., 38 C.F.R. § 3.159(c) (requiring claimant to "cooperate fully with VA's efforts" to obtain both VA and non-VA medical records). Accordingly, the Board notes that there has been substantial compliance with the August 2021 remand directives. Further, in October 2021, additional records were associated with the claims file including records from VistA imaging, Scenic Mountain Medical Center, Lamin-Lusk Sanchez Texas State Veterans Home, Encompass Home Health of West Texas, CMMS Corridor Mobile Medical Services, Physician Network Services, Community Medical Associates, and Senior Care of San Angelo. The Veteran's DM is rated as 20 percent disabling pursuant to 38C.F.R. §4.119, DC 7913. Under that diagnostic code, a 20 percent disability evaluation is assigned for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. A 40 percent evaluation is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Within the criteria for a 40 percent rating, "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). 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, those regulations do not apply where, as here, the conjunction "and" is used and the criteria are successive, with the criteria for lower ratings encompassed within those for higher ratings. See 38 C.F.R. §§ 4.7, 4.21; Camacho, 21 Vet. App. at 366 (2007); Tatum v. Shinseki, 23 Vet. App. 152 (2009). Turning to the evidence of record, the October 2013 VA examiner noted that the Veteran's DM was managed by a restricted diet, prescribed oral hypoglycemic agents, and a prescribed insulin injection once per day. The November 2014 VA examiner prescribed oral hypoglycemic agents, and a prescribed insulin injection once per day. The April 2015 VA examiner determined that the Veteran's DM was managed by restricted diet only. The November 2019 VA examiner noted that the Veteran's treatment for DM was a prescribed oral hypoglycemic agent and an insulin injection once per day. All of the examiners noted that regulation of activities was not required as part of medical management for the Veteran's DM. The Board notes that private treatment records reflect that the Veteran was hospitalized for hypoglycemia and acute renal failure in April 2017; however, there is no evidence that he was required to regulate his activities to avoid such complications. The Board has considered the Veteran's contention that his DM requires regulation of activities. See December 2016 VA Form 9. While the Veteran is competent to report symptoms because this requires only personal knowledge, he is not competent to identify a specific level of disability of his disorders according to the appropriate diagnostic codes. While the Veteran may choose to limit his activities as a result of his DM, the clinical evidence does not establish that doing so is medically necessary. Competent evidence concerning the nature and extent of the Veteran's DM has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, the medical evidence of record is more probative than the Veteran's subjective complaints of increased symptomatology. Consequently, the Board concludes that a rating in excess of 20 percent is not warranted for DM. 2. Peripheral Neuropathy of the upper and lower extremities associated with DM Note (1) under DC 7913 indicates that compensable complications of diabetes mellitus are to be evaluated separately unless they are used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under DC 7913. As such, the Board has considered complications of the Veteran's DM. The Veteran is currently in receipt of the following ratings associated with his DM: 1) peripheral neuropathy of the bilateral lower extremities, each rated 10 percent disabling; 2) peripheral neuropathy of the bilateral upper extremities, each rated 20 percent disabling; and 3) voiding dysfunction rated noncompensable. The Board finds that higher ratings are not warranted for these conditions. The Veteran's peripheral neuropathy of the lower extremities are currently each rated a separate 10 percent rating under 38 C.F.R. § 4.124a, DC 8520 from September 24, 2009. Pursuant to DC 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve in either lower extremity, a 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy; and a maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve that is characterized by a foot that dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee that is weakened or lost. The Veteran's peripheral neuropathy of the upper extremities are currently each rated 20 percent disabling under 38 C.F.R. § 4.124a, DC 8613 from April 13, 2012. Pursuant to DC 8613, in regard to the major extremity, a 20 percent rating is warranted for mild incomplete paralysis; a 40 percent rating is warranted for moderate incomplete paralysis; a 70 percent rating is warranted for severe incomplete paralysis; and a maximum 90 percent rating is warranted for complete paralysis. In regard to the minor extremity, a 20 percent rating is warranted for mild incomplete paralysis; a 30 percent rating is warranted for moderate incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis; and a maximum 80 percent rating is warranted for complete paralysis. The Veteran's right hand is his dominant hand. See October 2013 VA examination. At the October 2013 VA examination, the Veteran reported progressive weakness involving the upper and lower extremities and frequent episodes of numbness of his wrist and hand. The examiner determined that the Veteran had mild incomplete paralysis in the right and left upper and lower extremities. The November 2014 VA examiner determined that the Veteran had no upper or lower extremity diabetic peripheral neuropathy. At the Veteran's April 2015 VA examination, he reported diabetic peripheral neuropathy in both feet, primarily involving the big toes only and numbness in both hands, with the left worse than the right. The examiner determined that the Veteran had mild incomplete paralysis in the right and left upper and lower extremities. The examiner noted no diabetic peripheral neuropathy at the November 2019 VA examination. A review of the medical records also does not show more than mild symptoms of peripheral neuropathy. In light of the foregoing, the Board finds that increased ratings are not warranted for peripheral neuropathy of the upper and lower extremities associated with DM. 3. Voiding dysfunction associated with DM The Veteran's voiding dysfunction is currently rated as noncompensable under 38 C.F.R. § 4.115a, DC 7542. The Board finds that a higher rating for voiding dysfunction is not warranted. 38 C.F.R. § 4.115a provides that voiding dysfunction is rated as follows: Voiding Dysfunction: Rate particular condition as urine leakage, frequency, or obstructed voiding Continual Urine Leakage, Post Surgical Urinary Diversion, Urinary Incontinence, or Stress Incontinence: Requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day is rated 60 percent. Requiring the wearing of absorbent materials which must be changed 2 to 4 times per day is rated 40 percent. Requiring the wearing of absorbent materials which must be changed less than 2 times per day is rated 20 percent Urinary frequency: Daytime voiding interval less than one hour, or; awakening to void five or more times per night is rated 40 percent. Daytime voiding interval between one and two hours, or; awakening to void three to four times per night is rated 20 percent. Daytime voiding interval between two and three hours, or; awakening to void two times per night is rated 10 percent. Obstructed voiding: Urinary retention requiring intermittent or continuous catheterization is rated 30 percent. Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 1. Post void residuals greater than 150 cc; 2. Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); 3. Recurrent urinary tract infections secondary to obstruction.; or 4. Stricture disease requiring periodic dilatation every 2 to 3 months is rated 10 percent. Obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year is rated 0 percent. Turning the evidence of record, the October 2013, November 2014, and April 2015 VA examiners found no voiding dysfunction. A private treatment record shows difficulty urinating in July 2015. The November 2019 VA examiner noting voiding dysfunction as the Veteran reported it would take a longer period of time to go to the restroom. He noted hesitancy. However, the examiner found no urine leakage, no increased urinary frequency, and that the Veteran did not require the use of an appliance. In light of the foregoing, the Board finds that a compensable rating is not warranted for voiding dysfunction associated with DM. 4. Erectile Dysfunction ED associated with the Veteran's DM is currently rated noncompensable. ED is generally rated under 38C.F.R. §4.115b, DC 7522. To warrant the next higher rating of 20 percent under DC 7522, the evidence must show a penile deformity with loss of erectile power. If supported by evidence, the Veteran would then warrant a separate rating for erectile dysfunction rather than having it rated in conjunction with DM as a noncompensable complication. 38 C.F.R. § 4.119, DC 7913, Note (1). Turning to the evidence, VA examiners in October 2013, November 2014, April 2015, and November 2019 found that the Veteran had loss of erectile power; however, none of these examiners found that the Veteran had a penile deformity. Further, a review of the medical records does not show a penile deformity. Notably, the Veteran also has not contended that he a penile deformity. As there is no evidence showing that the Veteran has a penile deformity, a separate compensable rating for ED is not warranted. Aside from peripheral neuropathy of the upper and lower extremities, voiding dysfunction, and erectile dysfunction, which are currently service-connected and discussed above, the evidence does not show, nor has the Veteran contended, that he has any additional complications from his DM. REASONS FOR REMAND As noted in the April 2020 Board remand, an April 2012 private medical record showed an abnormal electrocardiogram and right branch bundle block with T wave abnormality with possible anterior ischemia; and a May 2016 VA medical record noted that the Veteran has been treated for an abcess/MRSA and heart valve problems at the Community Medical Center. The record also shows that the Veteran served in the Republic of Vietnam. Accordingly, the April 2020 Board remand directed the RO to obtain a VA examination to address the April 2012 and May 2016 treatment records described above and the Veteran's presumed exposure to Agent Orange in Vietnam to determine whether any of the Veteran's heart conditions are related to his service, to include Agent Orange exposure in service. A VA examination was provided in May 2020, which included a review of the available records in conjunction with a telephone interview with the Veteran. The examiner noted a diagnosis of supraventricular arrhythmia in 2012. The examiner acknowledged the April 2012 electrocardiogram EKG showing RBBB; however, he determined that this condition had resolved. The examiner provided a negative nexus opinion regarding the relationship between any heart condition and the Veteran's service. However, the Board finds the examiner's rationale is inadequate for adjudication purposes. In the examiner's rationale, he stated that "RBBB was present at one point during service" and that "[i]t is unclear when this condition began". Further, in regard to the May 2016 VA medical record noting that the Veteran has been treated for an abcess/MRSA and heart valve problems at the Community Medical Center, the examiner stated that the available records do not indicate any chronic, significant valvular pathology. However, he did not address whether the abcess/MRSA and heart valve problems noted in the May 2016 VA medical record are related to herbicide exposure during service. As the Board finds the May 2020 VA examiner's rationale to be inadequate, a new VA examination and/or medical opinion is warranted to address whether any of the Veteran's heart conditions diagnosed during the relevant appeal period since his September 2009 claim, are related to his service. The VA examination should also address the October 2021 transthoracic echocardiogram showing mild (grade I) diastolic dysfunction with normal filling pressures and insufficient TR jet to accurately assess RVSP. In ordering remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports regarding his heart conditions. Rather, the Board is merely requesting that the clinician on remand consider the Veteran's own descriptions of the history of his condition. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: Forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's heart conditions. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: (a.) Diagnose all heart conditions since September 2009. Specifically address the April 2012 private medical record showed an abnormal electrocardiogram and right branch bundle block with T wave abnormality with possible anterior ischemia; the May 2016 VA medical record noting that the Veteran had been treated for an abcess/MRSA and heart valve problems at the Community Medical Center; and the October 2021 transthoracic echocardiogram showing mild (grade I) diastolic dysfunction with normal filling pressures and insufficient TR jet to accurately assess RVSP. (b.) Do any of the Veteran's conditions diagnosed in part (a.) constitute ischemic heart disease? (c.) For each heart condition identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the condition had its onset in, was caused by, or is otherwise related to service, to include herbicide exposure during service. (d.) For each heart condition identified in part (a.), please state whether it is at least as likely as not that the condition was caused by the Veteran's service-connected DM. (e.) For each heart condition identified in part (a.), please please state whether it is at least as likely as not that the condition was aggravated by the Veteran's service-connected DM. For the purpose of providing the opinion(s) requested, please accept as valid the Veteran's statements that he had a heart condition since 1969; he was removed from flight status based on his examination while on active duty; and that while undergoing a stress test and Cardiolite examination as part of his annual flight physical in 1973 in Fort Sam, Houston, he was told that he had right bundle branch block; and state whether a nexus between the Veteran's heart conditions since September 2009 and service or a service-connected disability is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim (September 2009). The clinician should provide a complete rationale for any opinion rendered must be provided. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.