Citation Nr: 21026832 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 13-34 451 DATE: May 4, 2021 ORDER Entitlement to an evaluation in excess of 20 percent disabling for service-connected diabetes mellitus, type II, with bilateral cataracts and diabetic nephropathy is denied. FINDING OF FACT The Veteran did not experience a regulation of activities or episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. CONCLUSION OF LAW The criteria for establishing entitlement to an evaluation in excess of 20 percent disabling for service-connected diabetes mellitus, type II 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 served on active duty with the United States Army during the Vietnam era from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Pursuant to a recent Board decision, dated January 2021, this matter was remanded for additional development to include obtaining outstanding VA and private treatment records and scheduling the Veteran for an updated VA examination. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. In addition, the Board observes that the Veteran's November 2020 appellant's brief presented additional arguments regarding his previously denied claim of entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus-type II. As that issue is not on appeal before the Board, it will not be addressed in this decision. If the Veteran seeks re-consideration of the previously denied claim, he is free to submit a new request at any time. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2020). The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2020). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an evaluation in excess of 20 percent disabling for service-connected diabetes mellitus, type II. The Veteran contends that the current severity of his service-connected diabetes mellitus type II, with bilateral cataracts and diabetic nephropathy warrants a higher evaluation. As discussed in more detail below, the preponderance of the evidence is against his claim. Review of the record indicates that the Veteran's service-connected diabetes mellitus, type II, with bilateral cataracts and diabetic nephropathy is currently evaluated as 20 percent disabling under Diagnostic Code 7913. 38 C.F.R. § 4.119 (2020). Separate evaluations have been granted for left and right lower extremity diabetic peripheral neuropathy evaluated as 10 percent disabling from May 11, 2015, and 20 percent disabling from January 9, 2020. See Diagnostic Code 8520, 38 C.F.R. § 4.124a (2020). Under Diagnostic Code 7913, a 20 percent rating is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities, and involving episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or visits to a diabetic care provider twice a month plus complications that would not be compensable if separately evaluated. A maximum rating of 100 percent is assigned for diabetes mellitus requiring more than one daily injection of insulin; a restricted diet; and regulation of activities, avoidance of strenuous occupational and recreational activities; and, involving 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. Review of the record indicates that the Veteran has continued to seek treatment for his service-connected diabetes mellitus, type II. On examination for diabetic peripheral neuropathy, mild and intermittent symptoms impacted the bilateral lower extremities in April 2015. During the clinical interview, the Veteran reported a "pins and needles" sensation on the bottom of his feet with prolonged walking and standing. Decreased sensation in the toes impaired his ability to sleep with covering over his feet. Current symptoms were identified as mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the bilateral lower extremities. No neurological abnormalities were identified. Deep tendon reflexes were also normal. Light touch/monofilament testing revealed decreased sensation in the bilateral feet. Vibration sensation was also decreased in the bilateral lower extremities. There was no evidence of muscle atrophy. Trophic changes were described as shiny lower extremities with no hair and a dermatitis on lower legs. Mild incomplete paralysis of the sciatic nerve impacted the bilateral lower extremities. No functional impact was identified. Following the clinical evaluation, the examiner opined that it is at least as likely as not (50 percent probability or greater) that the Veteran's peripheral neuropathy of the bilateral lower extremities is proximately due to secondarily related to DM-II. The examiner acknowledged that the Veteran suffers from intermittent neuropathy with decreased sensation and vibration. Although he is symptomatic, the Veteran was deemed a poor historian. Since 2014, he endorsed use of diabetic shoes. Other prescribed treatments include Insulin since 2012 and oral hypoglycemic agents. A family medical clinic record, dated March 2017, found no evidence of complications related to the Veteran's diabetes. Diagnostic testing revealed an A1c of 6.4, with a fasting glucose of 137. In July 2017 ophthalmology outpatient note documented that the Veteran's diabetes mellitus type II was treated with Insulin injections. His condition was described as well-controlled. On physical examination, the pupils were equal, round, and reactive to light. Corrected distance visual acuity was 20/25 bilaterally. Slight lamp testing revealed normal findings. No new bilateral eye abnormalities were identified. Pursuant to an October 2017 Board Remand decision, the Veteran's claim was remanded to obtain updated VA and private treatment record and schedule the Veteran for a new VA examination. On examination in January 2018, prescribed treatments for the Veteran's diabetes mellitus, type II included an oral hypoglycemic agent, and one insulin injection per day. No activity restrictions were indicated. The Veteran received diabetic care for episodes of ketoacidosis less than 2 times per month. No hospitalizations were reported for ketoacidosis or hypoglycemic reactions over the past 12 months. There is no evidence that the Veteran experienced progressive unintentional weight loss or loss of strength attributable to diabetes mellitus, type II. Complications related to the Veteran's diabetes mellitus include diabetic peripheral neuropathy. No other conditions deemed permanently aggravated by the Veteran's service-connected diabetes mellitus. Diagnostic testing revealed an A1c pf 6.4 with a fasting plasma glucose of 153 in June 2017. No functional impairments were reported. On the same date, an examination for diabetic peripheral neuropathy was conducted. During the clinical interview, the Veteran reported an onset of neuropathy 1-2 years earlier. Current symptoms included intermittent pain, tingling and numbness in the bilateral feet. The Veteran reports symptom progression with worsening intermittent pain in his toes and feet overnight, to include when the sheets touch his feet. Symptoms attributed to the Veteran's diabetic peripheral neuropathy were listed as moderate intermittent pain in the bilateral lower extremities, mild paresthesias and/or dysesthesias in the bilateral lower extremities, and mild numbness in the bilateral lower extremities. No neurological abnormalities were identified. Deep tendon reflexes were normal. Light touch/monofilament testing revealed decreased sensation in the bilateral feet. Vibration sensation was also decreased in the bilateral lower extremities. There was no evidence of muscle atrophy. No trophic changes were noted. Sciatic and femoral nerve findings were normal. EMG studies were not conducted. No functional impact was identified. In January 2019, VA treatment records show that the Veteran was encouraged to increase participation in physical activities. During a primary care evaluation, he was counseled on the importance of consistency with mealtimes, managing carb-intake, and physical activity to achieve and maintain glycemic control. The same month, an ophthalmology evaluation listed a current diagnosis of cataracts in the right eye. One month later, a primary care clinical record documented complaints of feeling ill with intermittent low blood sugars. The Veteran denied any experience with dizziness, lightheadedness, chest pain, palpitations, increased shortness of breath, nausea, vomiting, diarrhea, increased pain or swelling to the extremities were indicated. Only occasional bouts with hypoglycemia were noted. The Veteran endorsed self-medication with sugar or orange juice. In November 2018, the Veteran was evaluated in the pharmacotherapy clinic for diabetes management. Reportedly, his blood sugars averaged between 140-150 upon rising in the morning. Three months earlier, prescribed medication, Glipizide was discontinued. The Veteran denied any recent problems with hypoglycemia. His current A1c was listed as 6.9 percent, only slightly higher than the 6.7 percent finding noted 6 months ago. The treatment plan listed a goal to maintain an A1c of less than 8 percent. Self-monitored blood glucose levels confirm no hypoglycemia. In the June 2019 appellant's brief, the Veteran's representative reported an increase symptom severity. Specifically, since the January 2018 VA examination, the Veteran was diagnosed with cataracts in the right eye which may be related to his service-connected diabetes mellitus, type II. Corrective surgery was anticipated for right eye in July 2019. Considering the above, a new VA examination was requested to determine its etiology. In a previous lay statement, dated April 2013, he reported use of insulin and dietary restrictions to control his diabetes. The Veteran also suggested that restricted activities were recommended. Similar arguments were re-stated in a November 2020 appellant' s brief. Again, in July 2019, the Board remanded the Veteran's claim to update VA and private treatment records and schedule the Veteran for new VA examinations. In January 2020, a VA examination for bilateral eye conditions were conducted. Current diagnoses included cataracts in the left eye and pseudophakia in the right eye. During the clinical interview, the examiner noted an initial diagnosis of bilateral cataracts in May 2005. In May 2019, the Veteran underwent cataract extraction with posterior chamber intraocular lenses (PC IOL) in the right eye. His most recent eye exam was conducted in June 2019. There was no evidence of diabetic retinopathy. Re-evaluation of the left eye for possible cataract correction was anticipated in May 2020. Uncorrected distance visual acuity was listed as 20/50 in the right eye and 20/100 in the left eye. Uncorrected near visual acuity was listed as 20/70 in the right eye and 20/70 in the left eye. Corrected distance visual acuity was listed as 20/20 or better in the right eye and 20/40 in the left eye. Corrected near visual acuity was listed as 20/20 or better in the right eye and 20/40 in the left eye. A physical examination confirmed pupils measured at 3 millimeters (mm) in diameter. They observed as round and reactive to light with no afferent pupillary defect. There was no evidence of anatomical loss, light perception, extremely poor vision or blindness, astigmatism, or diplopia. The Veteran's bilateral eye pressure was listed as 18. Slip-lamp testing was abnormal in the lens of the left eye. An internal eye examination revealed normal fundus, bilaterally. No visual field defects were identified. Pre-operative cataract was observed in the lens of the left eye, and post-operative cataract in the right eye. There was no evidence of aphakia or dislocation of the crystalline lens. A decrease in visual acuity was associated with pseudophakia. No scarring, disfigurement, or incapacitating episodes were reported or observed. Following the clinical evaluation, the examiner opined that the Veteran's bilateral cataracts are at least as likely as not (50 percent probability or greater) caused by diabetes mellitus. According to the American Diabetes Association, people with diabetes are 60 percent more likely to develop posterior subcapsular cataracts compared with other people. However, there was no evidence of diabetic retinopathy in either eye. The same month, a VA examination for diabetic neuropathy lower extremities was conducted. During the clinical interview, the Veteran reported constant burning pain in his feet particularly at night. Specifically, he reported an inability to tolerate sleeping with the sheets over his feet. Numbness and "odd sensations" were also reported. Regular care from a podiatrist was acknowledged. On examination, symptoms attributed to the Veteran's diabetic peripheral neuropathy included mild constant pain of the bilateral lower extremities, moderate intermittent pain in the bilateral lower extremities, mild paresthesias and/or dysesthesias of the bilateral lower extremities, and mild numbness in the bilateral lower extremities. Neurological findings were normal. Deep tendon reflexes were also normal. Light touch/monofilament testing revealed absent sensation in the bilateral feet. Position sensation was also absent in the bilateral lower extremities. Vibration sensation was decreased in the bilateral lower extremities. There was no evidence of muscle atrophy. No trophic changes were identified. Moderate incomplete paralysis of the sciatic nerve impacted the bilateral lower extremities. EMG studies were not conducted. No functional impact was reported. Also, in January 2020, a VA examiner listed the prescribed treatments for the Veteran's diabetes mellitus, type II as a restricted diet, oral hypoglycemic agent, and one insulin injection per day. Episodes of ketoacidosis and/or diabetic care was reported less than 2 times per month. In fact, the examiner suggested that the Veteran had not received diabetic care or related hospitalizations for episodes of ketoacidosis or hypoglycemic reactions over the past 12 months. There is no evidence that the Veteran experienced progressive unintentional weight loss or loss of strength attributable to diabetes mellitus, type II. Complications related to the Veteran's diabetes mellitus were identified as diabetic peripheral neuropathy and diabetic nephropathy or renal dysfunction. Diagnostic testing in October 2019, revealed an A1c pf 7.9 with a fasting plasma glucose of 173. No functional impairments were reported due to the Veteran's diabetes. A nephropathy examination, dated the same month, documented asymptomatic microalbumin in the Veteran's urine. Although the condition was deemed causally related to diabetes; no current impact on kidney function was identified. In January 2021, the Veteran's claim was again remanded for issuance of a supplemental statement of the case, which considered evidence newly associated with the claims file. A primary care treatment record, dated November 2020, indicated that the Veteran reported elevated blood sugars. The Veteran's hemoglobin A1c was listed as 7.9, an increase from 7.6 recorded several months earlier. Due to stress, only partial compliance with the prescribed diabetic diet was achieved. A repeat A1c was recommended in three months. If appropriate, an adjustment of prescribed medications would likely occur at that time. On review of the record, the Board finds that the assignment of the next higher evaluation of 40 percent disabling is not warranted for any point during the appeal period. To establish entitlement to higher evaluation of 40 percent disabling, the medical evidence must show that the claimant was prescribed Insulin, an oral hypoglycemic agent, required to observe a restricted diet, and avoid strenuous occupational and recreational activities. To date, the required showing has not been met. While the Board has fully considered the Veteran's lay assertion that he relocated to an apartment due to restricted activities, treatment records show that the Veteran was encouraged to engage in physical activities. In addition, multiple VA examinations have been conducted in this case. At no time during the appeal period has any medical opinion suggested that the Veteran's diabetes mellitus, type II required physical activity limitations or restrictions. Similarly, the Board observes the medical evidence is silent for any documentation that the Veteran's diabetes mellitus required one or two hospitalizations per year due to episodes of ketoacidosis or hypoglycemic reactions or visits to a diabetic care provider twice a month. Accordingly, an evaluation of 40 percent disabling is not warranted. Additionally, a rating of 40 percent disabling is assigned for neuropathy of the nerve described as moderately severe incomplete paralysis. To date, the Veteran's neuropathy has been associated with no worse than moderate incomplete paralysis of the nerve. See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2020). While the Board observes that evidence confirms additional complications of the Veteran's service-connected diabetes, including diabetic peripheral neuropathy of the bilateral lower extremities, a separate rating has already been assigned for that condition. Moreover, while the Veteran has been afforded multiple diabetic eye examinations, a current diagnosis of diabetic retinopathy has not been indicated. Although a current diagnosis of diabetic nephropathy has been confirmed, to date, there is evidence of an impact on his kidney functioning. Accordingly, as the preponderance of the evidence is against the Veteran's claim, the provisions of 38 U.S.C. § 5107 (b) regarding the benefit of the doubt are not applicable. The Veteran's claim of entitlement to an evaluation in excess of 20 percent disabling for service-connected diabetes mellitus, type II. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.