Citation Nr: 21027196 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-37 591 DATE: May 4, 2021 ORDER Entitlement to service connection for an eye condition, to include cataracts and diabetic retinopathy is granted. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus type 2 is denied. FINDINGS OF FACT 1. The Veteran's cataracts and diabetic retinopathy are shown to have developed secondary to service-connected diabetes mellitus. 2. The Veteran's diabetes mellitus is manifested by the need for daily oral hypoglycemic agents and dietary restrictions; however, the evidence does not demonstrate regulation of physical activity as defined by VA regulations, there have not been episodes of ketoacidosis or hypoglycemic reactions or twice a month visits to a diabetic care provider. There were no other diabetic complications (which are not already being separately considered). CONCLUSIONS OF LAW 1. Diabetic retinopathy and cataracts developed secondary to the service-connected diabetes mellitus. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for the assignment of a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.7, 4.120, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to June 1992, June 2004 to March 2008, and April 2008 to June 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. This case was previously before the Board and remanded most recently in July 2020 for additional development. The Board finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2020, the AOJ issued a supplemental statement of the case. Although the November 2020 VA Form 9 appears to include a Board hearing request, such a hearing was previously held, and there is no information or argument submitted by the Veteran or his attorney providing any good cause for another hearing. Further, the VA Form 9 had already been submitted for the issues adjudicated in the October 2018 SSOC. 1. Entitlement to service connection for an eye condition Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307 ) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The June 2013 VA examination for diabetes mellitus shows a diagnosis of diabetic retinopathy. At the June 2013 examination, the Veteran was also noted to have minimal age appropriate cataracts and diabetic retinopathy, status post laser treatment. During the January 2020 examination, the Veteran was diagnosed with bilateral cortical cataracts and it was determined that his diabetic retinopathy had resolved. In September 2020, the Veteran underwent another VA examination for eye conditions. The examiner noted diagnoses of diabetes mellitus with diabetic retinopathy, cataracts, and pre-glaucoma with all noted to have onset in 2013. The VA examiner noted that the Veteran had cortical cataracts and nuclear sclerosis cataracts and opined that it is highly likely that nuclear cataracts are more closely related to diabetes mellitus. Notably, the examiner determined that the Veteran's cataracts are responsible for the decreased visual acuity/visual impairment. The probative evidence thus supports finding that service connection for cataracts and diabetic retinopathy of the eyes is warranted. 2. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus type 2 The Veteran contends that his diabetes mellitus is more severe than indicated by his 20 percent disability rating. The Veteran's current claim was effectively established in July 2013. The Board notes that the Veteran is already separately service-connected for peripheral neuropathy of each lower extremity and upper extremity. Also, the claim for service connection for diabetic retinopathy has been separately addressed above. Under Diagnostic Code 7913, a 20 percent rating is warranted where diabetes mellitus requires 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, restricted diet, and regulation of activities. A 60 percent rating is warranted for 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 evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. These rating criteria are cumulative and in the conjunctive, meaning that each element of the criteria for a given level of disability must be present to warrant that evaluation. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The Board notes that the record has been negative as to episodes of hypoglycemic reactions or ketoacidosis and restriction in ability to perform strenuous activities due to diabetes mellitus. According to the July 2013, January 2020, and September 2020 VA examination reports the Veteran has been diagnosed with diabetes mellitus since 2005 or 2007. The VA examiners all noted treatment was a prescribed oral hypoglycemic agent(s) and one insulin injection per day. They all reported that the Veteran had less than 2 times a month for frequency of diabetic care provider visits for episodes of ketoacidosis and hypoglycemia and there were no episodes of hospitalization in the past 12 months for either ketoacidosis or hypoglycemia. The VA examiners also found that diabetes mellitus did not impact his ability to work. The July 2013 and September 2020 VA examiners found that the Veteran did not require regulation of activities as part of medical management of diabetes mellitus. While the January 2020 VA examiner indicated that the Veteran requires regulation of activities, he specifically noted weight loss, diet, and exercise. Restricted diet is a part of the criteria for a 20 percent rating. The Board further notes that "regulation of activities" is defined in the rating criteria for a 100 percent disability rating under Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities." 38 C.F.R. § 4.119, Diagnostic Code 7913. Although not specified in the rating criteria, the Board finds that this definition also applies to the "regulation of activities" discussed in the 40 percent and 60 percent disability ratings under Diagnostic Code 7913. Additionally, the Board notes that medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). Here, the Veteran was advised to exercise, rather than restrict his activities. As such, the evidence does not show regulation of activities was required to treat the Veteran's diabetes. Under Diagnostic Code 7913, a higher rating would require regulation of activities prescribed by a medical professional. Camacho; 38 C.F.R. § 4.119, Diagnostic Code 7913. The above discussion makes clear that medical professionals have actually recommended increased activity and that any restriction or regulation of activities has never been recommended due to diabetes mellitus. As such, the evidence is against a disability rating in excess of 20 percent for diabetes mellitus at any point during the appeal period. The Board acknowledges the Veteran's contentions that his diabetes is not properly rated. In this regard, the Veteran is competent to report what he sees and feels. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, in this case, the medical evidence of record clearly shows that a physician has not stated that regulation of the Veteran's activities is required to manage his diabetes. Apart from the peripheral neuropathy and the eye conditions addressed above, the evidence does not demonstrate any additional diabetic complications that would warrant separate compensable ratings. The Board notes that the January 2020 VA examiner also noted that the Veteran has hypertension due to his diabetes mellitus; however, hypertension has been service-connected throughout the pendency of this appeal. The VA examiners did not report any other complications or make findings of any other complications. For these reasons, a rating in excess of 20 percent for diabetes mellitus is not warranted. The preponderance of the evidence is against the claim for a disability rating in excess of 20 percent for diabetes. 38 C.F.R. § 4.7. The benefit of the doubt rule therefore does not apply, and an increased rating for this disability is not warranted. 38 C.F.R. § 4.3. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.