Citation Nr: 21023848 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-33 829A DATE: April 21, 2021 ORDER A rating in excess of 20 percent for type two diabetes mellitus with hypertension is denied. Special monthly compensation based on loss of use of a creative organ is granted. FINDINGS OF FACT 1. There is no evidence throughout the claim period that the Veteran’s diabetes requires regulation of activities, nor any evidence of episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. See, e.g., January 2021 VA Examination Addendum. 2. The Veteran experiences erectile dysfunction secondary to his service-connected type two diabetes mellitus. See December 2020 VA Examination. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for type two diabetes mellitus with hypertension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.119 Diagnostic Code 7913. 2. The criteria for special monthly compensation based on loss of use of a creative organ are met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350(a)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from September 1964 to October 1967 and from January 1971 to January 1977. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. An Increased Rating for Type Two Diabetes Mellitus The Veteran’s type two diabetes mellitus is currently rated as 20 percent disabling throughout the claim period under DC 7913. Under this code, a rating in excess of 20 percent is warranted for diabetes requiring one or more daily injection of insulin, restricted diet, and regulation of activities. Higher ratings are also warranted where, in addition, diabetes results in 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. The Veteran has been afforded three VA diabetes examinations during the claim period, in October 2018, November 2018, and December 2020 (with a January 2021 addendum). In addition, the Veteran submitted a May 2020 private diabetes examination. Each of the VA examinations found that the Veteran’s diabetes did not require regulation of activities and had not 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. (The November 2018 VA examination did note a diagnosis of hypertension secondary to diabetes, but the Veteran’s blood pressure readings do not warrant a separate compensable evaluation. See, e.g., November 2018 VA Examination (114/82, 124/86, 116/86); November 2019 VATR (112/77, 125/85); 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (For VA compensation purposes, hypertension is defined as diastolic blood pressure of predominantly 90mm or greater, and isolated systolic hypertension is defined as systolic blood pressure of predominantly 160mm or greater with diastolic blood pressure of less than 90mm. A diagnosis of hypertension requires confirmation by readings taken two or more times on at least three different days.)) The May 2020 private examination, however, concluded that the Veteran’s diabetes did require regulation of activities and had resulted in episodes of hypoglycemic reactions requiring at least one hospitalization in the past year. Specifically, the examiner pointed to a November 2019 emergency room visit for a complaint of “weakness.” The examiner suggested this episode was a “hypoglycemic event.” However, the record of the November 2019 emergency room visit contains no finding of a hypoglycemic reaction. Moreover, a January 2021 VA examination addendum clarified that this visit was “not related to hypoglycemia but rather poor control of the diabetes with hyperglycemia.” The examiner noted that “the Veteran reported that his home blood sugars over the preceding [three] weeks were in the 190 – 500 range,” and that he “also complained of polyuria, polydipsia, and urinary frequency – symptoms of hyperglycemia.” The Veteran’s blood sugar in triage was 206 and he was discharged with a diagnosis of uncontrolled diabetes. The conclusion of the January 2021 VA examination addendum is competent, credible, and entirely consistent with the evidence of record. In contrast, the May 2020 private examination opinion rests partly on a finding not actually attested in the medical record—that is, hypoglycemia. Therefore, the Board affords significantly more weight to the January 2021 VA examination. Altogether, in light of the consistent findings of the three VA examinations and the January 2021 VA examination addendum, as well as the unsupported finding of the November 2019 private examination, the Board finds that there is no evidence throughout the claim period that the Veteran’s diabetes requires regulation of activities, nor any evidence of episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. Accordingly, a rating in excess of 20 percent for type two diabetes mellitus is not warranted. In addition, the Board notes that a December 2020 VA examination noted erectile dysfunction secondary to the Veteran’s diabetes, although without any deformity of the penis. Because there is no deformity of the penis, a separate compensable rating is not warranted under DC 7522 (Penis, deformity, with loss of erectile power). However, the Board does find that special monthly compensation based on the loss of use of a creative organ is warranted, as discussed below. 2. Special Monthly Compensation Based on Loss of Use of a Creative Organ Veterans may be entitled to SMC for each anatomical loss of loss of use of, among other things, a creative organ, where the loss is the result of a service-connected disability. See 38 C.F.R. § 3.350(a). Here, a December 2020 VA examination noted a finding of erectile dysfunction secondary to the Veteran’s service-connected type two diabetes mellitus. The Veteran reported that he had not been able to achieve an erection since 2018, and the examiner noted that the Veteran was not currently able to achieve an erection sufficient for penetration and ejaculation without medication. In short, the Veteran is unable to complete the act of procreation due to his service-connected diabetes. Therefore, the Board finds that this erectile dysfunction constitutes loss of use of a creative organ. Accordingly, special monthly compensation based on the loss of use of a creative organ is warranted. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, 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.