Citation Nr: 21015432 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-30 118 DATE: March 17, 2021 ORDER For the entire rating period on appeal, a 40 percent rating for diabetes mellitus, is granted. Service connection for urinary incontinence, secondary to the service-connected diabetes mellitus disability, is granted. REMANDED For the entire rating period on appeal, a rating in excess of 40 percent for diabetes mellitus is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected diabetes disability requires daily injections of insulin, a restricted diet, and regulation of activities. 2. The Veteran’s urinary incontinence is at least, in part, secondary to his service-connected diabetes disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 40 percent for diabetes mellitus are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.119, Diagnostic Code 7913 (2020). 2. The criteria for service connection for urinary incontinence, secondary to service-connected diabetes mellitus disability, are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.10 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service from May 1974 to August 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing in February 2021; a transcript of the hearing is of record. Diabetes Mellitus Rating—Laws and Analysis Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155 ; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 ; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected diabetes disability has been rated as 20 percent disabling throughout the entire rating period on appeal. The Veteran maintains that a higher rating is warranted. Diabetes mellitus is evaluated under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent rating is warranted where insulin and restricted diet, or; use of oral hypoglycemic agent and restricted diet is required. A 40 percent rating is warranted where insulin, restricted diet, and regulation of activities is required. A 60 percent rating is warranted for diabetes mellitus requiring 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 warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulations 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. 38 C.F.R. § 4.119. Based upon review of the medical evidence of record, the Board finds that the Veteran’s diabetes disability more nearly approximates the 40 percent rating criteria under DC 7913. In this regard, the medical evidence clearly demonstrates that the Veteran’s diabetes requires insulin and a restricted diet. See August 2016 VA primary care note (Veteran was advised to follow low salt and low fat diet); see also March 2017 VA examination report (noting that the Veteran’s diabetes was managed by a restrictive diet, oral medication, and insulin). As it pertains to regulation of activities, the Veteran’s treating physician, Dr. Goodale, specifically indicated that the Veteran was “restricted from performing strenuous physical activities due to his diabetes.” See also October 2015 VA diabetes Mellitus Disability Benefits Questionnaire (where the examiner checked “YES” as to whether the Veteran’s diabetes required regulation of activities). In sum, the Board finds that the Veteran’s diabetes is being managed by treatment expressly considered by the 40 percent rating criteria under DC 7913. As such, the criteria for the 40 percent rating have been met. The issue as to whether a rating in excess of 40 percent is warranted for the Veteran’s diabetes disability is addressed in the remand section below. Further, the Board notes that the Veteran has already been awarded separate ratings for diabetic peripheral neuropathy of the bilateral lower extremities, erectile dysfunction, and diabetic retinopathy. Service connection for urinary incontinency as secondary to diabetes is being awarded in the section below. The Veteran has not been diagnosed with any other complication pertaining to his diabetes disability. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, the evidence of record shows that the Veteran is working. See July 2017 VA mental disorders examination report; see also September 2016 VA mental health note (Veteran is employed at The American Legion). He has also not raised the issue of unemployability. As such, no further discussion is required at this time. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection for Urinary Incontinence—Laws and Analysis Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The medical evidence of record confirms that the Veteran has been diagnosed with urinary incontinence. See March 2017 VA urinary tract examination report. Moreover, the evidence is at least in equipoise as to whether the Veteran’s urinary incontinence is secondary to his diabetes disability. In a March 2017 VA medical opinion, the examiner indicated that the Veteran’s urinary incontinence was less likely as not related to diabetes. In support of this opinion, the examiner stated that urinary incontinence is due to damage to the nerves that control release of urine. It could also be caused by overfilled urinary bladder from an enlarged prostate. Also, diabetes mellitus was not found to be a “direct cause of urinary incontinence.” On the other hand, the Veteran’s physician has specifically related the Veteran’s urinary incontinence to his service-connected diabetes disability. In a November 2018 treatment note, the Veteran’s physician (Dr. Rodriguez) stated that the Veteran’s urinary symptoms were “likely” the result of his long-standing diabetes and previous cerebrovascular accident. The Board finds that the record includes medical opinions weighing both in favor and against the Veteran’s claim. Resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for urinary incontinence as secondary to the service-connected diabetes disability is warranted. REASONS FOR REMAND As discussed above, the Veteran has been awarded a 40 percent rating for his diabetes disability throughout the rating period on appeal. The Board finds that a new VA examination is required to assist VA in determining whether a rating in excess of 40 percent is warranted. The Veteran has reported episodes of hypoglycemia in 2021. See Board Hearing Transcript at pg. 4. Accordingly, a new examination should be obtained to assess the current severity of the Veteran’s diabetes. The matters are REMANDED for the following actions: 1. Obtain all updated VA treatment records since December 2019 and associate them with the record. 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his diabetes mellitus disability. The examiner is asked to address the following: (a.) Indicate whether the Veteran’s diabetes has resulted in episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. (b.) Indicate whether the Veteran’s diabetes has resulted in progressive loss of weight and strength. 3. Then, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.