Citation Nr: 21025995 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-35 778A DATE: April 29, 2021 ORDER Restoration of a 60 percent rating for diabetes mellitus with diabetic retinopathy and erectile dysfunction (ED), effective January 1, 2014, is granted. REMANDED Entitlement to a rating in excess of 60 percent for diabetes mellitus with diabetic retinopathy and ED is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a September 2013 rating decision, the Regional Office (RO) reduced the rating for the Veteran’s service-connected diabetes mellitus with diabetic retinopathy and ED from 60 percent to 20 percent disabling, effective January 1, 2014. 2. The evidence of record at the time of the September 2013 rating decision did not demonstrate a material improvement in the Veteran’s service-connected diabetes mellitus with diabetic retinopathy and ED that was reasonably certain to be maintained under the ordinary conditions of life. CONCLUSION OF LAW Restoration of a 60 percent rating for the Veteran’s service-connected diabetes mellitus with diabetic retinopathy and ED is warranted, effective January 1, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3???, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1989 to September 1989. These matters arose to the Board of Veterans’ Appeals (Board) from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) RO. In February 2021, the Veteran testified before the undersigned at a virtual Board hearing. A transcript of the hearing is associated with the record. At the hearing, the undersigned and the Veteran agreed the issues on appeal included restoration of a prior rating for diabetes mellitus as well as entitlement to an increased rating for that disease. In addition, the Veteran raised the issue of entitlement to a TDIU, which is part and parcel of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to restoration of a prior rating for service-connected diabetes mellitus with diabetic retinopathy and ED The Veteran contends the RO’s reduction of his rating for diabetes mellitus from 60 percent to 20 percent disabling, effective January 1, 2014, was improper. For the following reasons, the Board agrees restoration of the prior 60 percent rating is warranted. By way of background, the Veteran was awarded a 60 percent rating for diabetes mellitus in a February 2009 rating decision, based on evidence showing that management of his diabetes required the daily use of insulin, a restricted diet, regulation of activities, and episodes of hospitalization in March and August 2008 as well as an episode of ketoacidosis in July 2008 while admitted for a separate condition. See 38 C.F.R. § 4.119, DC 7913. The rating decision cited an October 2008 VA Compensation and Pension (C&P) report which specifically noted the Veteran was restricted in his ability to perform strenuous activities due to multiple episodes of blurred vision and muscle cramps at work, in addition to other factors; the report noted these symptoms caused the Veteran to have to lay down and on many occasions leave work early. The 60 percent rating became effective March 24, 2008. The instant appeal stems from a September 2013 rating decision which reduced the 60 percent rating to 20 percent, effective January 1, 2014. This decision was based on a February 2011 VA C&P examination which purported to indicate the Veteran’s diabetes did not require him to regulate his activities; the report explains, however, that when the Veteran’s blood sugar was high, he felt unable to complete many activities and felt withdrawn and tired. The examiner acknowledged the Veteran’s diabetes mellitus “affects many of his activities,” but stated, “How much may be due to the fact that he is trying to hold down two full time jobs it is hard to say.” At the outset, the Board notes that the 60 percent rating was in effect for more than five years. As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are applicable. Accordingly, the rating may be reduced only if the examination upon which the reduction is based is at least as full and complete as the examination used to establish the prior higher rating. A rating that has been in effect for more than five years will not be reduced on any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Furthermore, a rating reduction is not proper unless the disability shows actual improvement in the ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The veteran need not demonstrate that retention of the higher rating is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was not warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. In this case, the Veteran’s diabetes mellitus is evaluated under DC 9713. Under that DC, diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet, is rated at 20 percent. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) is rated at 40 percent. 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 rated, is rated at 60 percent. Diabetes mellitus requiring 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 rated, is rated at 100 percent. 38 C.F.R. § 4.119, DC 7913. Here, the Board finds the evidence of record does not support a finding that the Veteran’s diabetes mellitus actually improved as of January 1, 2014, such that it resulted in an improvement in his ability to function under the ordinary conditions of life and work. The September 2013 rating decision which reduced the rating for the Veteran’s diabetes did not include consideration of the Veteran’s functional impairment; rather, it appears the decision was made on the basis of a single examiner’s notation indicating the Veteran did not need to regulate his activities on account of his diabetes mellitus. Upon closer inspection, however, the February 2011 C&P report clearly shows the Veteran was still experiencing significant impairment as a result of his diabetes that reasonably suggests he was forced to regulate his activities due to his disease. Moreover, the C&P examiner did not clearly indicate the Veteran’s diabetes had improved nor does the record otherwise contain evidence making it reasonably certain that any improvement would be maintained under the ordinary conditions of life and work. Indeed, the Veteran provided a DBQ in October 2014 from a physician who noted the Veteran was forced to alter his exercise regimen in order to stabilize his diabetes. He also testified at his Board hearing in February 2021 that he has been consistently told by medical personnel to regulate his activities on account of his diabetes. The Board acknowledges the February 2011 C&P examiner’s negative finding regarding whether the Veteran’s diabetes mellitus required him to regulate his activities. However, 38 C.F.R. § 3.344(a) makes clear that a reduction cannot be implemented based on a single examination unless the entire record warrants a finding of sustained improvement. Given that same examiner’s comments regarding the functional impairments related to the Veteran’s diabetes, and in light of the subsequent DBQ findings and lay testimony from the Veteran, the Board finds it is at best ambiguous as to whether the Veteran’s condition actually improved. VA has not met its burden to prove a reduction was warranted in this case. Accordingly, the Board finds the Veteran’s prior 60 percent rating for his diabetes mellitus with diabetic retinopathy and ED must be restored, effective January 1, 2014. Dofflemeyer, 2 Vet. App. 277 (holding that where VA has reduced a veteran’s disability rating without observing the applicable law and regulations, such a rating is void ab initio and restoration is required). To this extent, the Veteran’s claim is granted. REASONS FOR REMAND 2. Entitlement to a rating in excess of 60 percent for diabetes mellitus with diabetic retinopathy and ED is remanded. The Veteran contends his diabetes mellitus is worse than his current 60 percent evaluation reflects. He testified at his Board hearing that he has been hospitalized many times and has lost weight and strength due to this disease. Because these factors are relevant to determining whether the criteria for a higher rating are met, under 38 C.F.R. § 4.119, DC 7913, the Board finds a remand is warranted so the Veteran can be afforded another VA examination to determine the precise nature and severity of his symptoms. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381(1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). 3. Entitlement to a TDIU is remanded. The Veteran raised the issue of entitlement to a TDIU at his Board hearing, noting this was part and parcel of his increased rating claim. As such, the Board finds the claim is inextricably intertwined with the claim discussed above, and adjudication must be deferred pending resolution of the other matter. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and severity of his diabetes mellitus with diabetic retinopathy and ED. The examiner is asked to review the Veteran’s February 2021 testimony at his Board hearing, as well as VA medical records, and identify any diabetes-related hospitalizations and/or episodes of ketoacidosis or hypoglycemic reactions. The examiner is also asked to opine as to whether the Veteran’s diabetes mellitus has caused progressive loss of weight and strength. The examiner should consider the Veteran’s testimony in this regard as well. 2. Provide the Veteran with appropriate notice and paperwork regarding his claim for a TDIU. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.