Citation Nr: 21025609 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-46 119 DATE: April 28, 2021 ORDER Entitlement to an initial rating greater than 10 percent for type II diabetes mellitus (DM) prior to June 9, 2017 is denied. Entitlement to an increased rating of 20 percent, but no higher, for DM from June 9, 2017 to July 12, 2020 is granted. Entitlement to an increased rating greater than 20 percent for DM from July 13, 2020 is denied. Entitlement to a separate noncompensable rating for erectile dysfunction (ED) is granted. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to DM, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to June 9, 2017, the Veteran’s DM required only restricted diet. 2. From June 9, 2017, the Veteran’s DM required a restricted diet and an oral hypoglycemic agent; it did not require a daily injection of insulin or regulation of activities. 3. The Veteran’s ED, which is unaccompanied by penile deformity, is a result of his service-connected DM. 4. The Veteran’s loss of use of a creative organ is due to his service-connected DM. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for DM prior to June 9, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913 (2020). 2. The criteria for a disability rating of 20 percent, but no higher, for DM from June 9, 2017 to July 12, 2020 have been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913 (2020). 3. The criteria for a disability rating greater than 20 percent for DM from July 13, 2020 have not been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913 (2020). 4. The criteria for a separate noncompensable rating for ED have been met. 38 U.S.C. §§ 1155, 5107 (2019), 38 C.F.R. §§ 4.1, 4.7, 4.115b, Diagnostic Code 7522, 4.119 (2020). 5. The criteria for SMC based on loss of use of a creative organ have been met. 38 U.S.C. §§ 1114(k), 5107 (2019); 38 C.F.R. §§ 3.102, 3.350(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to October 1970. He appeals a November 2016 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In March 2019, the Board of Veterans’ Appeals (Board) remanded the issues of entitlement to TDIU and service connection for hypertension while denying entitlement to an increased initial rating for DM and entitlement to service connection for ischemic heart disease (IHD). In October 2019, pursuant to a Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims (Court) vacated, in part, and remanded the March 2019 Board decision that denied an increased initial rating for DM and entitlement to service connection for IHD. In March 2020, the Board remanded these two issues and the AOJ subsequently granted entitlement to service connection for IHD; therefore, this issue is not currently before the Board as it has been granted in full. See February 2021 rating decision. After further development in accordance with the March 2020 Board remand directives, the AOJ increased the Veteran’s DM rating to 20 percent, effective July 12, 2020. See August 2020 rating decision. The remaining issues are now back before the Board. The Board must first address a preliminary matter. As pointed out in the March 2020 Board Remand, the October 2019 JMPR requested the Board address whether an earlier effective date for the award of service connection for DM was warranted. The March 2020 Board Remand correctly noted this issue was never on appeal before the Board, never addressed by the AOJ, or even requested by the Veteran himself. See, e.g., March 2017 and May 2017 Notices of Disagreement (NODs). This issue was not mentioned until the October 2019 JMPR. Moreover, free-standing earlier effective date claims are impermissible because such claims would vitiate decision finality and there is no evidence the Veteran alleged a specific error in any prior final rating decision which would rise to the level of an allegation of previous clear and unmistakable error (CUE). See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Thus, in this case, the issue of an earlier effective date for service connection of DM is not in appellate status and not currently before the Board. Increased Rating for DM Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran contends that he is entitled to a higher rating for his DM, currently rated at 10 percent prior to July 13, 2020 and 20 percent thereafter under 38 C.F.R. § 4.119, Diagnostic Code 7913. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 172, 1178 (2013). A 10 percent rating is warranted when diabetes is managed by a restricted diet only. See 38 C.F.R. § 4.119, Diagnostic Code 7913. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. Id. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Id. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of 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. Id. A 100 percent rating is warranted when DM requires more than one daily injection of insulin, restricted diet, and regulation 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. Id. Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran’s disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran’ favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The record reflects the Veteran’s DM required a restricted diet during the appeal period; thus, he is entitled to a minimum 10 percent rating. The next rating, 20 percent, requires an oral hypoglycemic agent or daily insulin. Thus, the question in this appeal is whether the Veteran’s DM required an oral glycemic agent prior to July 13, 2020 and, then, whether his diabetes required daily insulin and any regulation of activity during the appeal period. Prior to June 9, 2017, VA treatment records did not discuss the requirement for any oral glycemic agent, including Metformin. The record is also silent for any treatment by insulin. See November 2016 VA examination report. Further, the Veteran does not contend his diabetes required treatment by any means other than restricted diet prior to June 9, 2017. As such, the preponderance of the evidence is against an initial rating greater than 10 percent prior to June 9, 2017. On June 9, 2017, a VA physician noted the Veteran’s HbA1c levels increased to 6.5 percent and the physician stated he “will hold off on Metformin for now, given [the Veteran’s] alcohol abuse and chronic kidney disease (CKD).” See June 2017 VA treatment records. This statement is subsequently repeated in the record despite a worsening of the Veteran’s diabetes over time. See January 2019 VA treatment records. For example, August 2019 VA treatment records note the Veteran’s HbA1c had increased from 6.3 percent to 6.8 percent and he continued experiencing “worsening” diabetes but his physician noted to “hold off on Metformin for now given [the Veteran’s] alcohol abuse and CKD.” Diagnostic Code 7913 does not require that an oral glycemic agent be administered on a regular basis or even be taken for the Veteran to qualify for a higher rating, merely that his diabetes is “requiring…[an] oral hypoglycemic agent.” The Veteran’s record suggests he would have been treated with Metformin, an oral hypoglycemic agent, but for his alcohol abuse and kidney disease. Thus, providing the Veteran the benefit of the doubt, the Board finds the Veteran’s diabetes required an oral hypoglycemic agent from June 9, 2017. As such, the Veteran is entitled to an increased rating of 20 percent from June 9, 2017 to July 12, 2020. The Veteran is not, however, entitled to the next highest rating, 40 percent, from June 9, 2017 as the rating criteria requires a restricted diet, at least one daily injection of insulin, and regulation of activities. The medical and lay evidence of record does not suggest the Veteran requires insulin injections or regulation of activities. See, e.g., March 2020 VA examination report. VA treatment records are silent for any suggestion that the Veteran was directed to regulate his activities. To the contrary, VA treatment records note the Veteran is regularly educated on the importance of exercise. See, e.g., August 2019 VA treatment records. Further, the March 2020 VA examiner found the Veteran was not required to regulate his activities, found no further diabetic complications, and ultimately concluded the Veteran’s DM had no impact on his ability to work. Thus, the Board finds the Veteran’s DM required only restricted diet and an oral glycemic agent from June 9, 2017. Finally, Note 1 of 38 C.F.R. § 4.119, Diagnostic Code 7913 states that compensable complications of DM are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation and noncompensable complications of DM are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). The Board finds the Veteran is entitled to a separate noncompensable rating for ED based on the June 2016 medical opinion of Dr. P.Y., who opined the Veteran’s ED was “more likely than not…directly and causally related to his DM.” As the evidence reflects the Veteran’s ED is a complication of his service-connected DM, he is entitled to a noncompensable rating which then entitles him to SMC based on the loss of use of a creative organ, as discussed below. See 38 C.F.R. § 4.114b, Ratings of the Genitourinary System Dysfunction, Diagnostic Code 7522. The Veteran is not entitled to a compensable rating, or 20 percent, under Diagnostic Code 7522 as the evidence does not reflect penile deformity. Id. In summation, the Board denies an initial disability rating greater than 10 percent prior to June 9, 2017 for the Veteran’s DM. The Board also grants an increased rating of 20 percent, but no higher, from June 9, 2017 to July 12, 2020, and denies entitlement to an increased rating greater than 20 percent from July 13, 2020. Finally, a separate, non-compensable rating for ED is also warranted. SMC Based on Loss of Use of a Creative Organ SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(1). As noted above, in the June 2016 medical opinion, Dr. P.Y. opined that the Veteran’s “longstanding ED which does not respond well to Viagra…is more likely than not” directly and causally related to his DM and is “permanent in nature.” Thus, the medical evidence shows that the Veteran’s ED is a result of the Veteran’s service-connected DM. Accordingly, the Board finds that the criteria for entitlement to SMC based on loss of use of a creative organ are met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350(a)(1). REASONS FOR REMAND Hypertension In March 2019, the Board remanded this issue obtain a medical opinion regarding the Veteran’s contention that his hypertension was related to his time in service or, alternatively, was secondary to his service-connected DM. In October 2019, the VA examiner incorrectly noted the Veteran was obese. VA treatment records note the Veteran, at 68 inches tall and approximately 184 pounds, is overweight, not obese. See, e.g., August 2019 VA treatment records (184 pounds); July 2020 VA treatment records (186 pounds). As such, this VA opinion for entitlement to direct service connection is inadequate. See Reonal v. Brown, 5 Vet. App. 458,461 (1993) (VA examinations hold little probative value if based on an inaccurate factual basis). More importantly, the VA examiner did not complete his medical opinion regarding whether the Veteran’s hypertension was aggravated by his service-connected DM. See October 2019 VA examination report (no rationale provided as to why a baseline cannot be established and no opinion box checked). Also, the examiner noted the “severity of the [Veteran’s] current [hypertension] is not greater than in service;” this is another incorrect statement as the record reflects the Veteran was diagnosed with hypertension in 2005, thirty-five years after service. Finally, the VA examiner’s negative nexus opinion that the Veteran’s DM did not cause his hypertension was not supported by adequate, or even relevant, rationale. Id. (“though he had exposure to herbicide, the hypertension did not occur soon after the exposure. And to date, the other sequelae of severe arteriosclerotic disease, coronary artery disease, cerebrovascular disease…have not manifested in this regard.”). Overall, this October 2019 VA medical opinion lacks adequate rationale and includes several inaccurate facts. The Board cannot use this opinion to make an informed decision on whether the Veteran’s service-connected DM caused or aggravated his hypertension. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, a remand is required. TDIU The record suggests the Veteran’s hypertension, in part, renders him unable to obtain or maintain employment. See June 2016 Dr. P.Y. medical opinion. Since the decision on the remanded issue discussed above impacts a decision on entitlement to TDIU, the issues are inextricably intertwined. Accordingly, the Board will defer a decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. Thereafter, obtain an opinion from an appropriately qualified clinician, other than the clinician who provided the October 2019 medical opinion, to determine the nature and etiology of the Veteran’s hypertension, to include as secondary to his service-connected DM. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a thorough review of the record to include all in-service and post-service treatment records, the reviewing clinician should answer the following: (a). Is it at least as likely as not (a 50 percent probability or more) the Veteran’s hypertension, was incurred in or is otherwise related to his time in service, to include his conceded exposure to herbicide agents? (b). Is it at least as likely as not (a 50 percent probability or more) that the Veteran’s hypertension was (1.) caused OR (2.) aggravated by his service-connected DM? The reviewing clinician should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the reviewing clinician rejects the Veteran’s reports of symptomatology, a reason for doing so should also be provided. The reviewing clinician should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the reviewing clinician cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the reviewing clinician must provide the reasons why an opinion would require speculation. As such, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.