Citation Nr: 21005470 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-22 959 DATE: February 1, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus with erectile dysfunction, is denied. Special monthly compensation (SMC) for loss of use of a creative organ is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s diabetes mellitus, type II, has not required regulation of activity. 2. The evidence of record demonstrates that the Veteran’s erectile dysfunction is manifested by loss of erectile power. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.6, 4.119, Diagnostic Code 7913. 2. The criteria for entitlement to SMC based on loss of use of a creative organ have been met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to June 2009. This matter was previously before the Board in April 2020, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. In correspondence dated July 2020, the Veteran requested to withdraw his claim for a TDIU. Withdrawal of an appeal is only effective where the withdrawal is “explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). The Board finds this satisfied based on the aforementioned communication, submitted by the Veteran’s representative. Importantly, the withdrawal was effective immediately upon receipt by VA. 38 C.F.R. § 20.204 (b)(3). The RO most recently readjudicated the appeal in an August 2020 supplemental statement of the case. The Board finds that VA has substantially complied with the April 2020 Board remand. Entitlement to a disability rating in excess of 20 percent for service-connected diabetes The Veteran contends that his type II diabetes mellitus is more severely disabling than represented by the rating assigned at all times during the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran’s type II diabetes mellitus is rated as 20 percent disabling under 38 C.F.R.§ 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent evaluation is warranted 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. A 60 percent evaluation is warranted for diabetes mellitus requiring insulin, a 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 evaluation is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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. Effective December 10, 2017, VA amended the rating criteria for Diagnostic Code 7913, changing “requiring insulin” for the 20 through 60 percent criteria to “requiring one or more daily injection of insulin.” See 82 Fed. Reg. 50804 (Nov. 2, 2017). This amendment to the rating criteria does not affect the outcome in this case. In order to demonstrate a regulation of activities, “medical evidence” is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase “regulation of activities” means “avoidance of strenuous occupational and recreational activities.” Camacho, 21 Vet. App.at 362 (quoting 38C.F.R.§4.119, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent evaluation)). The Board finds that the record shows that the Veteran’s type II diabetes mellitus requires a restricted diet and his use of insulin at all times during the pendency of the appeal. See, e.g. June 2020 VA examination. Therefore, the only question remaining for the Board to consider is whether the Veteran’s type II diabetes mellitus also requires him to regulate his activities at any time during the pendency of the appeal. The Veteran underwent a VA examination for diabetes in March 2015. The examiner noted that the Veteran required a restricted diet, was prescribed hypoglycemic agents, and required more than one injection of insulin daily. Notably, the examiner also found that the Veteran’s diabetes required regulation of activities but only pointed to the Veteran’s statements that he tried to avoid strenuous exercise to avoid hypoglycemia. In its April 2020 remand, the Board noted the deficiency in the March 2015 examiner’s rationale and sought a clarifying opinion regarding the Veteran’s service-connected diabetes. The Veteran was afforded another VA examination for diabetes in June 2020. The examiner also found that the Veteran required a restricted diet, was prescribed hypoglycemic agents, and required more than one injection of insulin daily. However, the examiner opined that regulation of activities was not necessary. The examiner provided a thorough description of the physiology of the condition and that blood glucose levels are remarkably well maintained during physical activity. Moreover, the examiner also noted that in diabetes patients with the Veteran’s profile, those with diabetes type II who are on insulin, physical activity may actually improve insulin sensitivity and assist in diminishing elevated blood glucose into the normal range. The examiner pointed to several long-term studies which have demonstrated a consistent beneficial effect of regular physical activity on carbohydrate metabolism and insulin sensitivity. Additionally, the Veteran’s treatment records also contain multiple instances of providers advising the Veteran to be more active as part of his overall treatment plan. The June 2020 VA opinion was based on the medical evidence and physician evaluation of the Veteran, the Board finds the medical opinions is entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. 295 (2008). After a review of the pertinent evidence, a rating in excess of 20 percent is not warranted for diabetes mellitus. Based on the above, the Veteran’s diabetes was treated with oral medication, insulin, and restricted diet throughout the pendency of the appeal. When this is applied to the rating criteria for diabetes, it is consistent with the current 20 percent rating. 38 C.F.R. § 4.119, DC 7913. The record does not show restriction of activities as is required for a higher rating. While the Veteran may believe that he is entitled to an increased evaluation for diabetes mellitus, the record does not support a 40 percent evaluation. The Veteran is competent to provide testimony to establish the occurrence of medical symptoms, but they are not medically qualified to prove a matter requiring medical expertise. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). The preponderance of the evidence is against a finding that the Veteran was prescribed restricted activities due to his diabetes mellitus. Self-limitation of activities is not the same as doctor-ordered regulation. Therefore, the Veteran’s claim for entitlement to a disability in excess of 20 percent for service-connected diabetes mellitus II with erectile dysfunction is denied. Consideration of Separate Rating for Erectile Dysfunction The Board further notes that the Veteran has erectile dysfunction associated with his type II diabetes mellitus. As discussed, note (1) to 38 C.F.R. § 4.119, Diagnostic Code 7913, provides that compensable complications of diabetes are evaluated separately. Moreover, as previously noted, Note (1) also provides that noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. In this regard, the RO determined that the Veteran’s erectile dysfunction was noncompensable (zero percent disabling). Erectile dysfunction (ED) is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7599-7522 (penis, deformity, with loss of erectile power). Under Diagnostic Code 7522, in order for the Veteran to receive a compensable rating for erectile dysfunction, physical deformity of the penis with loss of erectile power is required. Such manifestations would warrant a 20 percent rating. 38 C.F.R. § 4.115b. Two requirements must be met before a 20 percent evaluation can be assigned for deformity of the penis with loss of erectile power under Diagnostic Code 7522- (1) the deformity must be evident, and (2) the deformity must be accompanied by loss of erectile power. Simply stated, the condition is not compensable in the absence of penile deformity. Upon review of the evidence, the Veteran does not meet the criteria for a 20 percent rating. It is not in dispute that he has loss of erectile power. At a June 2020 VA examination, the examiner noted the Veteran’s erectile dysfunction as follows: The Veteran is not able to achieve an erection sufficient for penetration and ejaculation without medication. The Veteran does not have retrograde ejaculation. He does not have a history of chronic epididymitis, epididymo-orchitis or prostatitis. Upon physical examination of the penis and testes the examiner noted the Veteran was not examined per Veteran’s request however, the Veteran reported having normal anatomy with no penile deformity or abnormality. Based on the foregoing, the evidence of record does not reveal any physical deformity of the Veteran’s penis. He has not alleged, nor does the evidence show, that he has penile deformity. As such, there is no lay or medical support for a compensable disability rating for erectile dysfunction under Diagnostic Code 7522. Moreover, the Board notes that this decision also grants special monthly compensation for loss of use of a creative organ. Entitlement to SMC for loss of use of a creative organ VA has a duty to infer a claim for special monthly compensation when the evidence of record indicates potential entitlement. See Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC is a special statutory award granted in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA’s rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. § 1114(k) through (s) and 38 C.F.R. §§ 3.350 and 3.352. SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k), 38 C.F.R. § 3.350(a). Impotence is tantamount to loss of use of a creative organ. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. There does not appear to be any dispute the Veteran’s erectile dysfunction is manifested by loss of erectile power. SMC based on loss of use of a creative organ has not been adjudicated by the RO because service connection was not in effect for the erectile dysfunction. However, as detailed above, the Board has concluded that service connection is warranted for the erectile dysfunction. The Veteran’s erectile dysfunction is manifested by loss of erectile power and causes impotence. See June 2020 VA examination report. Consequently, he is entitled to SMC based on loss of use of a creative organ. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.