Citation Nr: 21025713 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-12 123 DATE: April 28, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for diabetes mellitus is denied. REMANDED Entitlement to service connection for a skin disability, to include chloracne, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for kidney cancer is remanded. Entitlement to service connection for an enlarged prostate is remanded. FINDING OF FACT The Veteran’s diabetes mellitus required only restricted diet and one or more daily injection of insulin, without prescribed restriction of activities, during the period on appeal. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from November 1968 until November 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal the rating decisions dated in May 2013 and May 2015 by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a Board hearing, via video conference, before a Veterans Law Judge. A transcript of that hearing is of record. The Veterans Law Judge who conducted the March 2019 hearing is no longer employed at the Board. In a February 2021 letter, the Veteran was informed that the Veterans Law Judge who conducted the March 2019 hearing was no longer employed at the Board, was given the opportunity to request another hearing and was informed that the Board would assume that he did not want another hearing if a response was not received within 30 days. The Veteran did not respond to this letter and the Board will proceed accordingly. In December 2019, the Board remanded the issues on appeal for further development. With respect to the Veteran’s claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Ratings A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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 Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an increased rating in excess of 20 percent for diabetes mellitus is denied. The Veteran seeks a higher disability rating for his diabetes mellitus. 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 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. 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. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. 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. A 100 percent rating is warranted when diabetes 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. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). 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 question in this appeal is whether the Veteran’s diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran’s diabetes mellitus required only restricted diet and one or more daily injection of insulin and a weekly injection of Ozempic during the period on appeal. The Veteran is competent to report that his activities have been reduced, to include reductions in physical activities such as walking and exercise, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical evidence of record is against a finding that regulation of activities was required during the period on appeal. The records reflect that the Veteran is treated for his diabetes with daily insulin and weekly Ozempic, as well as restriction of diet; however, there is no indication that his treatment regimen includes regulation of activities. In his November 2015 and January 2020 VA examinations, the examiners indicated that the Veteran’s activities were not restricted. In fact, several of the treatment records expressly encourage the Veteran to be more active. In an October 2018 treatment note, the treating physician encouraged an exercise program involving walking. In a January 2019 treatment note, the treating physician encouraged a home exercise program. In an April 2019 record, the treating nurse encouraged the Veteran to exercise and stay on his insulin regimen in addition to his dietary regimen. Accordingly, given that a restriction of activities is required for a higher rating which the preponderance of the evidence does not suggest, the Board finds against assigning a rating in excess of 20 percent during the period on appeal and the Veteran’s claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a skin disability, to include chloracne, is remanded. The VA examination does not show a current diagnosis. However, his treatment records show that he has a recurrent pityriasis rosea-like rash (noted as a PR-like eruption) that has been attributed to medication. His doctor thinks that the possible causes are NSAIDs/naproxen and possibly aspirin, furosemide, spironolactone, carvedilol, mirtazapine, or allopurinol. An opinion must be obtained as to whether any of these drugs are prescribed for any of his service-connected disabilities. 2. Entitlement to service connection for sleep apnea is remanded. 3. Entitlement to service connection for kidney cancer is remanded. 4. Entitlement to service connection for an enlarged prostate is remanded. The December 2019 Board remand directed the AOJ to obtain VA medical opinions that addressed the Veteran’s different theories of entitlement for his service connection claims for obstructive sleep apnea, kidney cancer, and enlarged prostate, including his theories that the disorders were related to his established exposure to herbicide agents during active service, or were secondary to his other service-connected disabilities, to include diabetes mellitus. However, the November 2020 VA medical opinion that was obtained in response to the remand did not adequately address these theories of entitlement for service connection. The Board finds that new VA examinations are necessary in order to obtain adequate opinions with respect to secondary service connection. Opinions were obtained but are inadequate because there are insufficient rationales to adjudicate the claims. Regarding the enlarged prostate and sleep apnea claims, the VA examiner noted that the conditions were not caused or aggravated by his service-connected disabilities without providing any rationale. Additionally, the VA examiner noted that common causes of the conditions, such as aging and upper airway obstruction, but did not provide any supporting rationale as to why these findings pertain to the Veteran. The examiner also did not adequately consider the Veteran’s reports of sleep issues during and after service in rendering her opinion. Regarding the kidney cancer claim, the VA examiner noted that the condition was “less likely than not secondary to service as it was not diagnosed until many years after service and is not known to be caused by AO (Agent Orange) exposure,” without providing any further rationale. Additionally, the VA examiner noted that the Veteran had chronic kidney disease related to his diabetic nephropathy, but did not provide an opinion on whether these conditions caused or aggravated the Veteran’s kidney cancer. As such the examinations do not comply with the remand instructions and is thus inadequate. Stegall v. West. 11 Vet. App. 268 (1998). When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Consequently, a remand is necessary to obtain an additional VA medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. The AOJ should obtain all outstanding VA treatment records for the Veteran and associate them with the claims file. 2. Following the completion of directive 1, forward the claims folder to an appropriate examiner for an opinion on whether it is as likely as not (50/50 probability or greater) that the Veteran’s recurrent PR-like eruption is related to service. Specifically, his doctor has attributed it to medication, potentially NSAIDs/naproxen and possibly aspirin, furosemide, spironolactone, carvedilol, mirtazapine, or allopurinol. The examiner is asked to review the record regarding the diagnosis, which was biopsied in September 2017 and July 2018, and provide an opinion on whether it is related to any of the drugs taken for any of his service-connected disabilities. The examiner is also asked to provide an opinion on whether it is related to presumed herbicide exposure. 3. After completion of directive 1, obtain an addendum opinion from a qualified VA examiner on the etiology of the Veteran’s obstructive sleep apnea. The claims files must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The examiner should provide an opinion as to the following questions: a). Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during active service or is otherwise related to an event, injury, or disease incurred during active service, to include his presumed exposure to herbicide agents (Agent Orange) in Korea. The examiner is advised that the fact that obstructive sleep apnea is not a disease that is presumptively associated with herbicide exposure under 38 C.F.R. § 3.309(e) may not be the only basis for a negative nexus opinion. If there is medical documentation that an etiological relationship does not exist on a primary basis, reference should be made to that documentation. b). If the above opinion is negative, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the sleep apnea disorder was caused or aggravated by his service-connected diabetes mellitus type II, to include medication used to treat the disability, or any other service-connected disability individually or in combination. In providing an opinion, the examiner should address whether the Veteran’s obesity was an intermediate step between his current sleep apnea and his service-connected diabetes mellitus type II with erectile dysfunction. Aggravation is defined as a worsening beyond the natural progression of the disability, and it need not be permanent in nature. A complete, thorough rationale must be provided for any opinion offered. 3. Obtain an addendum opinion from a qualified VA examiner on the etiology of the Veteran’s kidney cancer. The claims files must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The examiner must provide the following opinions: a). Whether it is at least as likely as not that the Veteran has a kidney condition related to an in-service injury, event, or disease, to include his presumed herbicide exposure and b). Whether it is at least as likely as not that the Veteran has a kidney condition related to, or aggravated by, any service-connected disability. The examiner is asked to specifically opine on whether the Veteran’s chronic kidney disease, or any other disability, to include medications taken for such conditions, caused or aggravated his kidney cancer. A complete, thorough rationale must be provided for any opinion offered. 4. Obtain an addendum opinion from a qualified VA examiner on the etiology of the Veteran’s enlarged prostate. The claims files must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The examiner is asked to review the articles cited by the Veteran in the January 2021 Appellate brief. The examiner must provide the following opinions: a). Whether it is at least as likely as not that the Veteran has an enlarged prostate related to an in-service injury, event, or disease, to include his presumed herbicide exposure and b). Whether it is at least as likely as not that the Veteran has an enlarged prostate related to, or aggravated by, any service-connected disability. The examiner is asked to specifically opine on whether the Veteran’s diabetes mellitus, or any other disability, to include medications taken for such conditions, caused or aggravated his enlarged prostate condition. A complete, thorough rationale must be provided for any opinion offered. Amanda E.H. Gibson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.