Citation Nr: 21021945 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-36 466 DATE: April 14, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for diabetes mellitus type II (DM2) is denied. Prior to February 11, 2016, entitlement to a compensable disability rating for residuals of a prostate adenocarcinoma is denied. From February 11, 2016, entitlement to a 20 percent disability rating for residuals of a prostate adenocarcinoma is granted. FINDINGS OF FACT 1. At worst, DM2 does not require insulin, restricted diet, and regulation of activities. 2. Prior to February 11, 2016, residuals of a prostate adenocarcinoma did not manifest as daytime voiding intervals between two and three hours; or, awakening to void two times per night. 3. From February 11, 2016, residuals of a prostate adenocarcinoma manifest in daytime voiding which occurred at intervals between one and two hours. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for DM2 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913. 2. Prior to February 11, 2016, the criteria for a compensable disability rating for residuals of a prostate adenocarcinoma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.115a, 4.115b, Diagnostic Code 7527. 3. From February 11, 2016, the criteria for a 20 percent disability rating for residuals of a prostate adenocarcinoma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.115a, 4.115b, Diagnostic Code 7527. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1964 to February 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied a rating in excess of 20 percent for DM2 and that denied a compensable rating for residuals of adenocarcinoma of the prostate. The Board remanded the matters in February 2019 for further development, specifically for the Veteran to undergo new examinations for his service-connected adenocarcinoma of the prostate and diabetes mellitus. In May 2020, the RO granted a 10 percent rating for residuals of adenocarcinoma of the prostate, effective October 7, 2019. In November 2020, the RO granted an increased rating of 20 percent for residuals of adenocarcinoma of the prostate, effective October 14, 2020. The Veteran sought to appeal a November 20, 2020 rating decision notification letter rather than opting into the Appeal Modernization Act (AMA) from the November 11, 2020 rating decision. Notably the issue of increased disability rating for residuals of a prostate adenocarcinoma was already pending in the Legacy system. As such, VA cannot accept the Veteran’s January 6, 2021 VA Form 10182 (AMA notice of disagreement (NOD)) because the November 20, 2020 rating decision was not an initial rating decision and, consequently, this increased disability rating issue must be reviewed via the Legacy system. Increased Disability Ratings The Veteran asserts that the disability ratings assigned to DM2 and residuals of a prostate adenocarcinoma do not contemplate the severity of these service-connected disabilities. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). DM2 Under Diagnostic Code 7913, a 20 percent rating is warranted for diabetes mellitus which requires insulin and restricted diet; or, oral hypoglycemic agent and restricted diet. 38 C.F.R. § 4.119, Diagnostic Code 7913. A 40 percent rating is warranted when diabetes mellitus requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus when it 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 rated. And, a 100 percent rating is warranted for diabetes mellitus which requires 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 rated. Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating under Diagnostic Code 7913. Id. at Note (1). In the instant case, VA has evaluated the Veteran’s complications of DM2 as separate disabilities. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. The criteria for a higher disability rating under this Diagnostic Code are conjunctive not disjunctive; for assignment of a 40 percent disability rating, there must be insulin dependence (or oral hypoglycemia agents), restricted diet, and regulation of activities. See Middleton v. Shinseki, 727 F. 3d 1172 (Fed. Cir. 2013) (if disability rating criteria are written in the conjunctive, “a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation” and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria). Evidence and Analysis Private treatment records disclose that the Veteran received treatment and medication for DM2 at the time of his initial claim. These records show treatment consisting of the drug Metformin. Upon a June 2006 VA genitourinary examination, a clinician noted that the Veteran had a history of DM2. The clinician indicated that the Veteran took Metformin and Glipizide. The Veteran was obese was not in clinical distress. The Veteran reported that he had been taking medication for DM2 since 2001. Concurrent VA treatment records disclose that the Veteran’s DM2 control consisted wholly of an oral hypoglycemic agent. A review of 2009 VA treatment records continues to show that the Veteran’s DM2 control consisted wholly of an oral hypoglycemic agent. In May 2009, the Veteran reported for a VA DM2 examination. A clinician reviewed the claims file; considered the Veteran’s lay accounts; and conducted an appropriate evaluation. The clinician indicated that the Veteran’s DM2 was clinically stable and current treatment consisted of oral medications—Metformin and Glipizide. In an October 2010 VA primary care note, a clinician indicated that the Veteran had DM2 and was obese. As to DM2 control, the clinician indicated a regimen of Metformin tablets, a daily insulin injection, and cycles of Glipizide (contingent upon blood sugar levels). The Veteran submitted lay statements in January 2011 in May 2011. In pertinent part, the Veteran articulated that he warranted an increase in his rating for DM2 because he took more medication and had become insulin dependent. 2011 VA progress notes disclose that a clinician advised—but did not prescribe—that the Veteran start an exercise program. The Veteran received handouts on the glycemic index of food and insulin type and action. Clinicians also advised the Veteran of the health risks associated with obesity. In March 2011, the Veteran reported for a VA DM2 examination. This clinician indicated that that the Veteran’s DM2 control regimen consisted of hypoglycemic agents and insulin (as of 2010). The Veteran indicated that he did not have episodes of ketoacidosis or episodes of hypoglycemic reactions. The Veteran conveyed that he was trying to restrict his intake of carbohydrates, fats, and sweets; however, he acknowledged that he had gained 20 pounds over the last year. The Veteran also complained of fatigue and lassitude. The clinician indicated that the Veteran was not under any physician-prescribed restriction on strenuous activities to prevent hypoglycemic reactions. In May 2011, a VA clinician opined that the Veteran would need to forego high carbohydrate snacks and limit his intake of fruit juices or receive an extra shot of insulin. Upon a June 2011 VA general examination, a clinician indicated that the Veteran’s insulin dose had increased. In March 2015, the Veteran reported for a VA DM2 examination. The clinician reported that the Veteran’s DM2 treatment consisted of dietary restrictions, oral hypoglycemic agent, and more than one insulin injection per day. However, this treatment regimen did not include physician-prescribed regulation of activities. The Veteran indicated that he had not been hospitalized for either ketoacidosis or hypoglycemic episodes over the past year. The Veteran reported that he sought care for ketoacidosis less than two times a month and had neither experienced unintentional weight loss nor loss of strength. The clinician noted that the Veteran had diabetic neuropathy. (As noted, the Veteran is separately service connected for bilateral lower extremity diabetic peripheral neuropathy and bilateral upper extremity diabetic peripheral neuropathy.) In February 2016, the Veteran reported for a VA DM2 examination. The clinician reported that the Veteran’s DM2 treatment consisted of dietary restrictions; more than one injection of insulin daily; and a glucagon-like peptide-1-agonist injection. However, this treatment regimen did not include physician-prescribed regulation of activities. The Veteran reported that he sought care for ketoacidosis less than two times a month and had neither experienced unintentional weight loss nor loss of strength. The Veteran indicated that he had not been hospitalized for either ketoacidosis or hypoglycemic episodes over the past year. The Veteran reported that he lived on a two-acre lot and is no longer able to do his own landscaping because of lower extremity peripheral neuropathy. (As noted above, the Veteran is separately service connected for bilateral lower extremity diabetic peripheral neuropathy.) In a February 2019 brief, the Veteran’s representative contended that the Veteran’s DM2 is more severe than that contemplated by a 20 percent rating. In October 2019, the Veteran reported for a VA DM2 examination. The clinician indicated that the Veteran’s DM2 treatment consisted of restricted diet and more than one injection of insulin daily. However, this treatment regimen did not include physician-prescribed regulation of activities. The Veteran indicated that he has experienced less than two episodes of ketoacidosis and/or hypoglycemia per month. The Veteran reported that he had neither experienced unintentional weight loss nor loss of strength. The Veteran endorsed functional limitations attributable to separately service-connected bilateral lower extremity diabetic peripheral neuropathy and bilateral upper extremity diabetic peripheral neuropathy. In July 2020, the Veteran’s representative submitted another brief in which the representative re-stated his earlier contentions. While delineating the criteria for a higher disability rating for DM2, the representative did not demonstrate how the Veteran met these criteria. In October 2020, the Veteran reported for a VA DM2 examination. The clinician indicated that treatment for DM2 consisted of dietary management; prescribed oral hypoglycemic agents; and more than one insulin injection per day. However, this treatment regimen did not include physician-prescribed regulation of activities. The Veteran indicated that he has experienced less than two episodes of ketoacidosis and/or hypoglycemia per month. The Veteran reported that he had neither experienced unintentional weight loss nor loss of strength. The clinician reported that there was no evidence of malaise; rashes or lesions; evidence of ascites; edema; urinary incontinence; or bowel incontinence. As discussed above, to receive a rating in excess of 20 percent for DM2 there would need to be a showing that DM2 requires insulin, restricted diet, and regulation of activities. Such is not disclosed in the evidence of record. In the many VA examinations of record, no clinician has indicated that DM2 treatment requires a regulation of activities. As discussed, the ratings for DM2 are conjunctive not disjunctive; for assignment of a 40 percent disability rating, there must be insulin dependence (or oral hypoglycemia agents), restricted diet, and regulation of activities. See Middleton, 727 F. 3d 1172. The evidence shows that the Veteran does require insulin and a restricted diet, which is fully contemplated by a 20 percent rating under Diagnostic Code 7913. The Veteran (and his representative) believe that DM2 is of a severity that warrants a rating in excess of 20 percent. The Board recognizes the Veteran’s belief in this degree of severity. While the Veteran is competent to report his discernable symptoms, as a lay person, he lacks the highly specialized medical training to render complex opinions as to the severity of an endocrinological disease (DM2). Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Considering the above, a preponderance of the evidence is against the claim for a rating in excess of 20 percent for DM2. Consequently, the benefit-of-the-doubt rule is not for application and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Residuals of a prostate adenocarcinoma The Regional Office (RO) has evaluated the Veteran’s residuals of a prostate adenocarcinoma pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7527. The current ratings are initially noncompensable, 10 percent from October 7, 2019, and 20 percent from October 14, 2020. Diagnostic Code 7527 instructs to rate as voiding dysfunction or urinary tract infection, whichever is predominant. The criteria for voiding dysfunction and urinary tract infection are found in § 4.115a. The rating criteria for urinary tract infection provides a 10 percent rating when the disability requires long-term drug therapy, one to two hospitalizations per year and/or requires intermittent intensive management. A 30 percent rating is warranted when there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Poor renal function due to urinary tract infection is to be rated as renal dysfunction. 38 C.F.R. § 4.115a. Under 38 C.F.R. § 4.115a, a voiding dysfunction can be rated according to urine leakage, frequency, or obstructed voiding. Id. For urine leakage, a 20 percent rating for a voiding dysfunction is warranted when wearing absorbent materials which must be changed less than two times per day is required. A 40 percent rating is warranted for requiring the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is warranted for requiring the use of an appliance or wearing of absorbent materials which must be changed more than four times per day. Id. For urinary frequency, 10 percent rating contemplates daytime voiding intervals between two and three hours; or, awakening to void two times per night. A 20 percent rating contemplates daytime voiding intervals between one and two hours or awakening to void three to four times per night. A 40 percent rating contemplates daytime voiding intervals of less than one hour or awakening to void five or more times per night. Id. For a rating under obstructed voiding, a noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. A 10 percent rating is warranted for marked obstructive symptomatology, such as 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; (4) stricture disease requiring periodic dilatation every two to three months. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. Id. Evidence and Analysis Prior to February 11, 2016 In a May 2006 letter, Dr. T., a private physician, opined that the Veteran had undergone a radical retropubic prostatectomy in May 2004. Dr. T. indicated that the Veteran had fully recovered from this procedure and was capable of full activities. The Veteran was scheduled for a VA genitourinary examination in May 2006; however, the Veteran failed to report for the examination. In a January 2007 VA urology consultation report, a clinician indicated that the Veteran had full continence. In a March 2009 lay statement, the Veteran conveyed that he experienced difficulty holding his bowels, adding that he experienced severe diarrhea and soiled his clothing. Upon a May 2009 VA genitourinary examination, a clinician noted that the Veteran did not have a history of: 1) general systemic symptoms due to genitourinary disease; 2) urinary symptoms; 3) urinary leakage; 4) recurrent urinary tract infections; 5) obstructed voiding; 6) urinary tract stones; 7) renal dysfunction or failure; 8) acute nephritis; 9) hydronephrosis; or 10) cardiovascular symptoms. In his January 2011 lay statement, the Veteran wrote that he has been unable to control his bowel movements since his prostate surgery. Upon a March 2011 VA genitourinary examination, a clinician indicated that the Veteran complained of some lethargy and weakness. The Veteran reported that he urinates 4 or 5 times a day, but seldom during the night. The urinary stream is strong and there is no hesitancy, poor stream dysuria, post-void dribbling, or incontinence. In a June 2011 VA general examination, a clinician indicated that the Veteran’s prostate cancer has shown no evidence of recurrence and would not impact employment. Upon a July 2014 VA urinary tract examination, a clinician indicated that the Veteran did not have a current bladder or urethral disease. Upon a VA prostate examination of the same date, a clinician indicated that the Veteran did not have a voiding dysfunction or recurrent symptomatic urinary tract or kidney infections. The Veteran did have erectile dysfunction (for which the Veteran is separately service connected). There was no evidence of renal dysfunction. The clinician reported that these residuals did not impact the Veteran’s ability to work. In December 2014, the Veteran reported that his genitourinary symptoms had worsened. Upon a March 2015 VA prostate examination, a clinician indicated that the Veteran endorsed urinary leakage. The Veteran reported that this leakage sometimes occurred when he coughed or sneezed. The clinician also noted urgency. This voiding dysfunction did not require the use of an appliance and was not productive of increased urinary frequency. The clinician reported that these residuals did not impact the Veteran’s ability to work. Upon a February 11, 2016 VA urinary tract examination, a clinician indicated that the Veteran had diagnoses of urinary incontinence and urinary urgency. The Veteran endorsed stress urinary incontinence and a sense of urgency. These diagnosed entities did not require the wearing of absorbent material or an appliance. Daytime voiding occurred at intervals between one and two hours. There was no evidence of obstructed voiding, urolithiasis, or recurrent bladder/urethral conditions. The clinician reported that these residuals did not impact the Veteran’s ability to work. Upon a VA prostate examination of the same date, the Veteran reported that the onset of urinary urgency that began around 2005 following his prostatectomy in 2004. The clinician repeated the findings of the urinary tract examination as to urinary incontinence and urinary urgency. This evidence shows that there are no reported urinary tract infections, so the Veteran’s voiding dysfunction is his predominant disability attributable to residuals of a prostate adenocarcinoma. See 38 C.F.R. § 4.115b, Diagnostic Code 7527. No clinician found that the Veteran required absorbent materials or the use of an appliance for leakage. Further, no clinician indicated that the Veteran experienced obstructed voiding. Thus, the clinical evidence of record indicates that urinary frequency is the Veteran’s the predominant manifestation of residual voiding dysfunction. In March 2011, the Veteran reported that he urinated 4 or 5 times a day, but seldom during the night. In July 2014, the clinician indicated that the Veteran did not have either a voiding or a urinary tract infection. In March 2015, the clinician indicated that the Veteran sometimes urinates when he coughs and sneezes. And, at the February 11, 2016 examination, the clinician reported that the Veteran’s voiding dysfunction caused increased urinary frequency, characterized as “daytime voiding interval between one and two hours.” As already noted, for urinary frequency, a 10 percent rating contemplates daytime voiding intervals between two and three hours, or; awakening to void two times per night and a 20 percent rating contemplates daytime voiding intervals between one and two hours, or; awakening to void three to four times per night. The Board finds that a compensable rating is not warranted prior to February 11, 2016 based upon voiding dysfunction. The Board finds that the criteria for a compensable rating prior to February 11, 2016 is not warranted and a rating of 20 percent is warranted from February 11, 2016. From February 11, 2016 In the February 11, 2016 examination, the Veteran’s residuals of a prostate adenocarcinoma best approximate a 20 percent disability rating—as urinary frequency of daytime intervals between one and two hours. However, a rating in excess of 20 percent is not warranted as the evidence from the February 11, 2016 examination fails to disclose daytime voiding intervals of less than one hour; or, awakening to void five or more times per night. In an October 2019 VA prostate examination, a clinician indicated the Veteran endorsed intermittent episodes of dysuria. Voiding dysfunction did not require the wearing of absorbent material or use of an appliance. The clinician reported daytime voiding between two and three hours, with no nighttime awakening to void. Symptoms of obstructed voiding included weak stream and decreased force of stream only. And, there was no history of recurrent symptomatic urinary tract or kidney infection. The Veteran reported that this disability impacted his ability to work because he requires frequent restroom breaks to urinate. In an October 2020 VA prostate examination, a clinician indicated the Veteran conveyed that he cannot hold his water—such a limitation impacts occupational functioning and ordinary activities. The clinician reported that voiding dysfunction caused urinary leakage; however, this leakage did not require the wearing of absorbent material or use of an appliance. Daytime voiding occurred at intervals between one and two hours and the Veteran endorsed nighttime awakening to void two times. There was no evidence of obstructed voiding or history of recurrent symptomatic urinary tract or kidney infections. As noted above, to receive a rating in excess of 20 percent, there would need to evidence of daytime voiding intervals of less than one hour; or, awakening to void five or more times per night. Such was not disclosed in either the October 2019 or October 2020 VA prostate examinations. As was the case in February 11, 2016, the Veteran’s residuals of a prostate adenocarcinoma most nearly approximate a 20 percent rating for the same reasons discussed above. The Veteran (and his representative) believe that residuals of a prostate adenocarcinoma are of such severity that they warrant a rating in excess of 20 percent. The Board recognizes the Veteran’s belief in this degree of severity. While the Veteran is competent to report his discernable symptoms, as a lay person, he lacks the highly specialized medical training to render complex opinions as to the severity of genitourinary residuals. Jandreau, 492 F. 3d 137. Therefore, the Board finds that the criteria for a rating in excess of 20 percent has not been met at any time after February 11, 2016. As the preponderance of the evidence weighs against the granting a rating in excess of 20 percent for residuals of a prostate adenocarcinoma, the benefit-of-the-doubt doctrine does not apply, and the claim for rating in excess of 20 percent for residuals of a prostate adenocarcinoma must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.