Citation Nr: 21022747 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 10-18 174 DATE: April 19, 2021 ORDER A disability rating in excess of 20 percent for diabetes mellitus, type II, for accrued benefits purposes, is denied. A disability rating of 60 percent rating diabetic nephropathy, for accrued benefits purposes, is granted, subject to the law and regulations governing the award of monetary benefits. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), for accrued benefits purposes, is granted, subject to the law and regulations governing the award of monetary benefits. Special monthly compensation (SMC) based on the need of regular aid and attendance, for accrued benefits purposes, is granted, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. During the relevant period on appeal, the Veteran’s diabetes mellitus was managed by the use of oral hypoglycemic agents, insulin, and a restricted diet, but it did not medically required regulation of his activities. 2. During the relevant period on appeal, the Veteran’s diabetic nephropathy was productive of definite decrease in kidney function. 3. The evidence is in at least relative equipoise as to whether the Veteran’s diabetic complications prevented him from obtaining and maintaining substantially gainful employment. 4. The evidence is in at least relative equipoise as to whether the Veteran required regular need of aid and attendance due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code 7913. 2. The criteria for an award of 60 percent rating for diabetic nephropathy, for accrued benefits purposes, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7541. 3. The criteria for an award of a TDIU, for accrued benefits purposes, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. 4. The criteria for an award of SMC based on the need of regular aid and attendance, for accrued benefits purposes, have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1964 to February 1966. Unfortunately, he died in February 2008. The Appellant is his surviving spouse. This appeal arose from a March 2009 rating decision. In September 2011 and April 2017, the Board remanded the claims for further evidentiary development. Specifically, the Board remanded in order for the Agency of Original Jurisdiction (AOJ) to determine whether it was appropriate to consider the Appellant as the surviving spouse of the Veteran in order to receive benefits. The AOJ formally determined that the Appellant was the surviving spouse of the Veteran. See March 2020 Rating Decision. 1. A disability rating in excess of 20 percent for diabetes mellitus, type II, for accrued benefits purposes, is denied. The Appellant is seeking a higher rating for the Veteran’s diabetes mellitus, which is rated at 20 percent disabling under Diagnostic Code 7913. Under Diagnostic Code 7913, 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, 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. Compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. See Note (1) to 38 C.F.R. § 4.119, Diagnostic Code 7913. The Court has held that, 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.” Id. at 362 (quoting 38 C.F.R. § 4.11, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent rating)). “Successive” rating criteria in a diagnostic code is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, a Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). For example, Diagnostic Code 7913 is successive in nature because each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent; the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Camacho, 21 Vet. App. at 366. Turning to the relevant evidence of the record, at the October 2003 VA examination, it was reported that there was no history of ketoacidosis or hypoglycemic reactions. It was noted that the Veteran followed his own diet. There was no restriction of activities and the Veteran’s weight remained stable. For treatment, the Veteran used glyburide and followed his diet. There was no history of insulin usage. The Veteran visited his primary care physician every three months. At the March 2005 VA examination, the Veteran denied experiencing ketoacidosis or hypoglycemic reactions. The Veteran followed a diabetic diet and there was no weight change. There was no evidence of restriction of daily living activities on the account of his diabetes. The Veteran took glyburide daily for treatment and visited his diabetic care provider every four or five months. The Veteran underwent a VA examination in September 2007. In that examination report, it was noted that the Veteran was at the emergency room. He was disoriented, uncooperative, unable to follow instructions or give information. It was reported that the Appellant was unaware of any details regarding the Veteran’s health and was unable to provide precise information about the Veteran’s symptoms and complaints. The examiner commented that the information documented in the examination report was taken from the medical record. The Veteran had multiple admissions at the hospital due to acute infections, in which he maintained uncontrolled blood glucose levels. There were episodes of hypoglycemic reactions or ketoacidosis, but it did not require hospitalization. The Veteran was not restricted in the ability to perform strenuous activities. He visited his diabetic care provider monthly or less often. It was noted that the Veteran had cardiac symptoms related to diabetes, but due to the Veteran’s state of disorientation, was not able to get more information regarding the nature of those symptoms. The Appellant was unable to provide details regarding those symptoms. With respect to diabetic skin symptoms, the September 2007 VA examiner noted ulceration, plaques, and areas of atrophy. The examiner indicated that there were plaque-like lesions over the tibia, as well as an ulcer with eschar on the dorsum of the right hand. The examiner opined that it was most likely related to intravenous (IV) insertion site infection during a recent prolonged hospitalization with IV antibiotics. The examiner assessed that the examination should be deferred once the Veteran was discharged from the hospital in order to assess the symptoms and functionality, and reliable laboratories in the outpatient setting, after obtaining stabilization of his acute problems. In an August 2007 Discharge Summary Note, it was reported that the Veteran presented with uncontrolled diabetes. Glycemic control was difficult to obtain because the Veteran was uncompliant with the diet and refused to have insulin injections. In a November 2007 Discharge Summary Note, it was noted that the Veteran did not have any physical activity limitations. After thorough consideration of the evidence, the Board finds that the Veteran’s diabetes did not warrant a rating in excess of 20 percent. While the Veteran’s condition was treated with oral glycemic agents and a restricted diet, his condition did not require regulation of his activities. There were no physical limitations noted or prescribed due to his diabetes mellitus. The Board notes that the Veteran’s condition was noted to be uncontrolled but that was due to the Veteran not following his diet and receiving insulin shots. It was not attributed to the Veteran needing regulation of activities. The Board acknowledges that the Appellant believes that the Veteran was entitled to an evaluation in excess of 20 percent for his diabetes. However, in order for the Veteran to receive the next higher rating, 40 percent, it is required that regulation of activities is necessary for treatment. As mentioned before, the medical evidence shows that the Veteran did not ever require regulation of his activities for treatment. The Board has considered whether the Veteran is warranted any separate ratings for complications due to diabetes, other than his already service-connected diabetic nephropathy. The Board acknowledges that the September 2007 VA examination report noted skin abnormalities due to his diabetes mellitus. However, subsequent medical records showed that the Veteran did not have any skin abnormalities attributed to his diabetes. See June 2016 VA Treatment Medical Records (CAPRI). The Board also acknowledges that the September 2007 examiner noted decreased pulses in the Veteran’s lower extremities on the examination report. However, subsequent treatment records revealed the Veteran’s extremities to be in normal condition, in muscle tone and range of motion. There were no sensory deficiencies reported. See Id. Furthermore, with regard to cardiac symptoms noted in the examination report, a July 2007 Discharge Summary Note provided that the Veteran underwent cardiac echocardiogram to rule out cardiac involvement. The results were negative. See March 2009 VA Medical Treatment Record. The Board notes that the examiner’s report was mostly based on the information from the record due to the Veteran’s condition. Accordingly, the medical evidence does not support assigning additional ratings for other diabetic complications. The Board is sympathetic to the Appellant’s claim. Unfortunately, however, the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for his service-connected diabetes mellitus, type II. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. The appeal as to this issue is denied. 2. A disability rating of 60 percent rating diabetic nephropathy, for accrued benefits purposes, is granted. The Veteran’s diabetic nephropathy was evaluated under Diagnostic Code 7541. The Veteran’s nephrology was evaluated under renal dysfunction. A noncompensable rating is warranted for albumin and casts with history of acute nephritis; or, hypertension non-compensable under Diagnostic Code 7101. A 30 percent rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension is at least 10 percent disabling under Diagnostic Code 7101. A 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension is at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is warranted for requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Turning to the relevant evidence of the record, at the March 2005 VA examination, it was reported that the urinalysis revealed traces of protein. Serum creatinine and BUN were reported to be within normal limits. On the September 2007 VA examination report, the examiner noted that there was evidence of a recent event of acute renal failure secondary to aminoglycosides nephrotoxicity. The examiner indicated that there was no evidence of significant micro-albuminuria to suggest nephropathy in laboratories in the past. The VA treatment records showed that the Veteran suffered acute renal failure. At the time of his September 2007 hospital discharge, it was noted that laboratory results reported adequate renal function. See March 2009 VA Medical Treatment Record. Of significant note, it was determined that chronic kidney disease contributed to the Veteran’s cause of death. See March 2008 Death Certificate. After a very thorough consideration of the evidence of the record, resolving reasonable doubt in the Appellant’s favor, the Board finds that a 60 percent is warranted for the Veteran’s diabetic nephropathy. The Veteran suffered acute renal failure and was hospitalized. Additionally, his kidney disease contributed to his death. The medical evidence indicates that the Veteran experienced definite decline in renal function, which resulted in renal failure. Therefore, the Board finds that his nephropathy more nearly approximated the severity level contemplated by the 60 percent rating. However, the Veteran’s nephropathy does not warrant an 80 or 100 percent rating. The medical evidence did not show that he had persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. The Veteran also did not require dialysis. He did not experience markedly decreased function in kidney or any other organ system, to include cardiovascular, due to service-connected diabetic nephropathy, though his kidney disease did manifest a decline in function as evidenced by the renal failure. The Veteran did have hypertension, which was assessed with his diabetic nephropathy. Again, the Board acknowledges that the Veteran’s chronic kidney disease contributed to his cause of death. However, it was not the primary cause of death, which would indicate markedly decreased function. The Board finds that the severity of the Veteran’s nephropathy was adequately contemplated by the 60 percent rating criteria. In summation, the Board finds that the Veteran is entitled to a 60 percent rating, but no higher, for his diabetic nephropathy. The appeal as to this issue is granted. 3. A TDIU, for accrued benefits purposes, is granted. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). After the grant of a 60 percent rating for diabetic nephropathy, the schedular criteria are met for consideration for entitlement to TDIU under 38 C.F.R. § 4.16(a). Diabetes mellitus and diabetic nephropathy are considered disabilities resulting from a common etiology. Turning to the relevant evidence of the record, on the Janaury 2008 VA Form 21-8940, the Veteran reported that approximately 2000 was the year he last worked and became too disabled to work. The Veteran reported completing up to two years of college. He did not have any other education or training before and since becoming too disabled to work. The Veteran reported that his occupation was in “personal business.” Unfortunaltely, the Veteran passed away shortly after filing his claim for a TDIU. Therefore, there was not much development conducted, such as contacting prior employers regarding the nature of the Veteran’s prior work. In a February 1999 VA Examination report, it was noted that the Veteran previously worked as a handyman, a car mechanical parts delivery clerk, agricultural produce ambulatory business salesman, and a stock room clerk. The Board has reviewed the medical evidence of the record with respect to the Veteran’s diabetic complications. He suffered renal failure and was hospitalized in part due to that condition. Status-post hypoglycemic shock and chronic kidney disease were determined to have been contributing factors to the Veteran’s death. The Board acknowledges the evidence that shows that the Veteran’s non-service-connected mental disorder greatly impacted his ability to perform activities. However, it is obvious his service-connected conditions profoundly deteriorated during the appeal period. His death was contributed to by his service-connected diabetic complications. The medical evidence shows that the Veteran was hospitalized multiple times, shortly before filing his TDIU claim and afterwards. These multiple hospitalizations would significantly impact his ability to obtain and maintain substantially gainful employment. If these conditions contributed in a way to the cause of death, then it is reasonable to assume that these conditions would contribute to his ability to maintain employment, as evidenced by medical records. Based on the available evidence of the record, the Board finds that the evidence is in at least relative equipoise regarding whether the Veteran’s service-connected diabetic complications precluded his ability to perform the mental and physical acts of employment. The Board notes that the issue of a TDIU is not a medical issue, but an adjudicative one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Resolving reasonable doubt in favor of the Appellant, the Board finds that a TDIU is warranted. The appeal as to this issue is granted. 4. SMC based on the need of regular aid and attendance, for accrued benefits purposes, is granted. Under 38 C.F.R. § 3.351(a)(2), SMC is payable to a Veteran by reason of being in need of aid and attendance. 38 U.S.C. §§ 1114, 1115. The need for aid and attendance means helplessness as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). In this regard, the Veteran will be considered in need of regular aid and attendance if he or she (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in § 3.352(a). 38 C.F.R. § 3.351(c). The following criteria will be accorded consideration in determining the need for regular aid and attendance: the inability of a claimant to dress or undress oneself, or to keep oneself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without such aid, such as supports, belts, lacing at the back, etc.); the inability of a claimant to feed oneself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated be found to exist before a favorable ruling may be made. The particular personal functions which an individual is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that a claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a claimant is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that a claimant's condition is such that it would require her to be in bed. They must be based on the actual requirements of personal assistance from others. 38 C.F.R. § 3.352 (a); Turco v. Brown, 9 Vet. App. 222, 224 (1996). SMC also is payable based on housebound status where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114 (s) (2012); 38 C.F.R. § 3.350 (i). Turning to the relevant evidence of the record, in a November 2007 Statement in Support of the Claim (VA Form 21-4138), it was stated that the Veteran had been in and out of the hospital since July 2007. In a January 2008 Hospice Consult Note, the Appellant reported that due to the Veteran’s medical conditions, he was bedridden and not able to make decisions, as he was frequently encephalopathic. It was noted that the Veteran seemed like a good candidate for the hospice unit and could be admitted upon availability. The Board finds that the evidence is in relative equipoise regarding whether the Veteran required regular aid and attendance or was permanently housebound due to his service-connected disabilities. The Board acknowledges that the evidence of the record shows that there are some non-service-connected disabilities that contributed to the Veteran's helplessness and being bedridden. However, the Board does find that the Veteran’s diabetic process, specifically his nephropathy, contributed to his helplessness as well. The Veteran suffered from acute renal failure. The Veteran was hospitalized multiple times. Prior to the Veteran’s death, he was considered a good candidate for hospice care. The Veteran’s kidney disease and post-hypoglycemic shock were noted to be a contributing cause of his death. Resolving reasonable doubt in favor of the Appellant, the Board finds that the evidence establishes a factual need of regular aid and attendance due to his service-connected disabilities rendering him helpless. The grant of SMC at the aid and attendance rate renders the issue of entitlement to SMC at the housebound rate moot. This is because SMC at the housebound rate is a lesser benefit than SMC at the aid and attendance rate. 38 U.S.C. § 1114. In sum, the criteria for special monthly compensation based on the need for aid and attendance has been met and entitlement to SMC based on the need for aid and attendance, for accrued benefits purposes, is warranted. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, Associate 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.