Citation Nr: 21014512 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-05 653 DATE: March 12, 2021 ORDER A rating in excess of 20 percent for diabetes mellitus, type II is denied. Service connection for hypertension (HTN) is granted. Service connection for hypothyroidism is granted. REMANDED Entitlement to a rating in excess of 10 percent for the Veteran’s diabetic peripheral neuropathy of the right lower extremity is remanded. Entitlement to a rating in excess of 10 percent for the Veteran’s diabetic peripheral neuropathy of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus required a treatment regimen consisting of insulin therapy, prescribed oral hypoglycemic agents and a restricted diet. 2. Throughout the appeal, the Veteran’s diabetes mellitus did not require regulation of activities and did not result in episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospital visits per year or twice a month visits to a diabetic care provider. 3. The Veteran’s hypertension is due to his service-connected diabetes mellitus. 4. The Veteran’s hypothyroidism is presumed incurred in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 20 percent disabling for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.15, 4.16, 4.25, 4.79, Diagnostic Codes 7101, 7541, 7913. 2. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for hypothyroidism are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116(a)(2), 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1968 to May 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2014 (DM) and September 2015 (HTN and hypothyroidism) rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and K.F., a nurse presented sworn testimony at a hearing before the undersigned Veterans Law Judge in August 2019. The claims were remanded for further development in October 2019. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II. The Veteran’s service-connected diabetes mellitus type II is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. A 20 percent rating is assigned under Diagnostic Code 7913 for diabetes mellitus manageable by requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned 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 maximum 100 percent rating is assigned for diabetes mellitus requiring more than one daily injection of insulin, a 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. Id. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes will be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Non-compensable complications are considered part of the diabetic process. Note (2) to Diagnostic Code 7913 states that, when diabetes mellitus has been diagnosed conclusively, a glucose tolerance test should be not requested solely for rating purposes. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Notes (1), (2). “Regulation of activities” has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining “regulation of activities,” as used by VA in DC 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). During the December 2019 VA diabetes mellitus examination, the examiner indicated the Veteran is prescribed insulin more than once a day and a restricted diet to treat his diabetes. The examiner found that the Veteran does not require regulation of activities as part of medical management of diabetes mellitus. The examiner indicated that the Veteran visits his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month. Also, the examiner stated that the Veteran has not had any episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. A 40 percent rating requires that diabetes mellitus be managed by insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, DC 7913. Upon review of the record, the Board finds that the Veteran’s diabetes mellitus, type II, does not require regulation of activities as part of medical management. Thus, a 40 percent rating of diabetes mellitus, type II, is not warranted. The Board further finds that the higher ratings of 60 and 100 percent are not appropriate in this case as the record does not reflect that the Veteran required insulin, hospitalizations after episodes of ketoacidosis or hypoglycemic reactions, weekly visits to a diabetic care provider, or progressive loss of weight and strength. Thus, the claim is denied. As a preponderance of the evidence is against an increased rating, the benefit of the doubt doctrine does not apply, and the claim must be denied. In reaching this determination, the Board notes that the nature, extent and severity of the manifestations of his diabetes mellitus, to specifically include his diabetic peripheral neuropathy of the right lower extremity and left lower extremity, is discussed in the remand section of this decision. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents even though there is no record of such disease during service, if they manifest to a compensable degree after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. Of note, hypothyroidism was recently added to the list of diseases subject to presumptive service connection, via the National Defense Authorization Act for Fiscal Year 2021, effective January 1, 2021. See Pub.L. 116-283; 38 U.S.C. § 1116(a)(2) (January 1, 2021). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for hypertension (HTN), to include as due to service-connected DM or exposure to herbicide agents. In January 2021 written argument, the Veteran’s representative, The American Legion, asserted that service connection for hypertension should be granted based on the change in status by the NAS. The Veteran also contends that he has hypertension related to service, or, secondarily, is aggravated by his service-connected diabetes mellitus. The Veteran was afforced a VA examination in development of this claim. A December 2019 VA examination report includes a notation that the Veteran’s VA e-folder was reviewed. The Veteran was diagnosed with hypertension. The examiner indicated that the claimed condition was less likely than not proximately due to, or the result of, the Veteran’s service-connected condition. The examiner stated that the progression of the Veteran’s hypertension is just as likely due to his increased age. The examiner, however, acknowledged that the Veteran had an increase of the dose of his blood pressure medication since he was diagnosed with his service-connected diabetes mellitus, type 2. In light of the evidence of record, the Board cannot conclude that the preponderance of the evidence is against granting service connection for a hypertensive disorder on a secondary basis. The Board therefore finds that the Veteran’s hypertension is aggravated by his service-connected diabetes mellitus. Thus, secondary service connection is warranted. See 38 C.F.R. § 3.310. The Board notes that there is no probative evidence relating hypertension to the Veteran’s period of service. As the Board has granted secondary service connection it need not address direct service connection, or any other theories for service connection, in this matter. 3. Entitlement to service connection for hypothyroidism. The Veteran is requesting service connection for hypothyroidism based on his presumed exposure to herbicide agents while serving in the Republic of Vietnam. In January 2021 written argument, The American Legion highlighted that there was recently a change in the presumptive service connection under the authority of 38 C.F.R. § 3.309e. Further, given that the Veteran has been diagnosed as having hypothyroidism, his representative asserts that service connection for hypothyroidism is warranted based on the change in the law. There is no dispute that the Veteran had a diagnosis of hypothyroidism during the pendency of the claim. See April 2016 VA examination report. VA has also already established that the Veteran served in Vietnam and is presumed to have been exposed to herbicide agents. As noted above, the disease of cancer of the hypothyroidism was recently added to the list of diseases subject to presumptive service connection under 38 U.S.C. § 1116(a)(2) (January 1, 2021). Moreover, in the present case, the Board finds that the Veteran’s hypothyroidism became manifest to a compensable degree. As such, the Board finds that service connection for hypothyroidism may be presumed. The benefit sought on appeal is granted. REASONS FOR REMAND 4. Entitlement to a higher rating for the manifestations of the Veteran’s diabetes mellitus, to include diabetic peripheral neuropathy of the right lower extremity and left lower extremity, and to a TDIU, is remanded. As discussed above, pursuant to Note (1) in Diagnostic Code 7913, to Diagnostic Code 7913 provides that compensable complications of diabetes will be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Here, because the nature and severity of the Veteran’s diabetic peripheral neuropathy of the right lower extremity and left lower extremity is unclear, a remand for further development is necessary to adjudicate this appeal. In light of the grants of service connection for hypothyroidism and hypertension, as well as the remand for the nature, extent and severity of the manifestations of the diabetic process, to include the nature, extent and severity of his peripheral neuropathy of his right lower extremity and left lower extremity, this issue must be remanded for further development Further, during the August 2019 Board Hearing, the Veteran presented sworn testimony that he left the workplace before of his service-connected right and left lower extremity neuropathy disabilities. During a December 2019 VA Diabetic Sensory – Motor Peripheral Neuropathy examination, the Veteran reported being retired miner and heavy equipment operator. He explained that his employability is impacted because he has reduced sensation and occasional numbness in his feet and cannot feel sharp or irregular shaped objects through his boots. The matter is REMANDED for the following action: 1. Obtain any outstanding records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, of the nature, extent and severity of his service-connected disabilities and the impact of the conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Afford the Veteran a VA examination to determine the nature, extent and severity of his diabetic peripheral neuropathy of the right lower extremity and left lower extremity. The examination should also rule in or exclude a diagnosis of any other manifestation of the diabetic disease process, to specifically include diabetic peripheral neuropathy of the right upper extremity and/or left upper extremity. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker 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.