Citation Nr: 21030097 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 14-25 330A DATE: May 17, 2021 ORDER Entitlement to a rating of 40 percent, but no higher, for type II diabetes mellitus with erectile dysfunction, for the entire period on appeal, is granted. REMANDED Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the entire appeal period, the preponderance of the evidence shows that the Veteran's service-connected type II diabetes mellitus has required a daily injection of insulin, a restricted diet, and regulation of activities; however, it did not result in episodes of ketoacidosis or hypoglycemic reactions requiring at least one hospitalization per year, nor was there evidence of twice a month visits to a diabetic care provider or associated penile deformity. CONCLUSION OF LAW 1. For the entire period on appeal the criteria for a disability rating of 40 percent, but no higher, for type II diabetes mellitus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to June 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded by the Board in April 2018 and September 2020 for further development. The appeal has now returned to the Board for further adjudication. In a February 2021 rating decision, the Veteran was assigned a rating of 40 percent for type II diabetes mellitus with erectile dysfunction, effective December 8, 2020. As the Veteran has not been assigned the maximum available benefit for the period on appeal, the Board will consider whether the Veteran is entitled to a rating in excess of 20 percent prior to December 8, 2020, and rating in excess of 40 percent thereafter. See AB v. Brown, 6 Vet. App. 35 (1993); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Lastly, the Board finds that the record raises a claim for a total rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). Post-Remand Compliance The Board finds that the post-Remand development complied with the Remand because the VA examination dated in January 2021 provides VA with medical evidence adequate to rate the Veteran's type II diabetes mellitus under all applicable rating criteria. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board also finds that the post-Remand development complied with the Remand because while the appeal was in Remand status all identified and available VA and private treatment records were obtained and associated with the record. Id. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or obtain additional treatment records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). There is no basis to remand this appeal. The Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's type II diabetes mellitus with erectile dysfunction is rated as 20 percent prior to December 8, 2020, and 40 percent thereafter under 38 C.F.R. § 4.119, DC 7913, 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 1172, 1178 (Fed. Cir. 2013). 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, DC 7913 (Note 1). Because DC 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's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After reviewing the evidence of record, the Board finds that the Veteran is entitled to a rating of 40 percent prior to December 8, 2020, for his type II diabetes mellitus. For the time period prior to December 8, 2020, a higher 40 percent rating required that the Veteran's diabetes mellitus required one or more daily injections of insulin, a 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). An April 2017 VA treatment record documented that the Veteran was taking insulin daily, and that his diet was restricted. A February 2014 VA examination also documented that the Veteran was taking daily medication to treat his diabetes. Thus, the remaining question for the Board is whether there is evidence that the Veteran's diabetes required regulation of activities as part of the medical management of his diabetes. There is conflicting evidence in the record regarding whether the Veteran's diabetes required regulation of activities as part of the medical management of his diabetes, prior to December 8, 2020. A February 2014 VA examination noted that the Veteran was taking daily medication to treat his diabetes, however, the examiner did not find that the Veteran required regulation of activities as a part of medical management of his diabetes. September 2016 and November 2016 VA treatment records also document that the Veteran was encouraged to exercise or participate in light intensity exercise. However, a November 2013 VA treatment record notes that the Veteran was to stop a graded exercise test, and to cut down on walking to prevent Charcot's disease. In a June 2018 rating decision, the Veteran was service connected for Charcot's disease in both of his lower extremities which was found to be associated with his lower extremity neuropathy, which is associated with his diabetes mellitus. In July 2014 correspondence, the Veteran's private physician, S.C. (initials used to protect privacy), indicated that the Veteran was on insulin and strenuous activity will make his sugar bottom out to hypoglycemic levels. He was therefore advised to avoid heavy activity since the reaction can be profound. In a December 2017 treatment record, the Veteran was advised to decrease his blood sugar and stay off his feet as much as possible due to increased Charcot breakdown in his right foot. In addition, in a June 2018 VA examination for the Veteran's peripheral neuropathy, he was instructed to engage in less walking, no bicycling, no walking on the treadmill, and not to use a step ladder. The Board finds that the evidence is in equipoise as to whether the Veteran's diabetes required regulation of activities prior to December 8, 2020, as part of the medical management of the disorder. See Owens, supra; Tantum, supra. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that a rating of 40 percent is warranted for the period on appeal prior to December 8, 2020. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. However, the Board finds that a review of the evidence does not show that a rating in excess of 40 percent is warranted at any time during the pendency of the appeal, as there is no lay or medical evidence of episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In fact, both the February 2014 and January 2021 VA examinations document that the Veteran has not had any episodes of ketoacidosis or hypoglycemia and that he visits his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). In addition, in an April 2017 VA treatment record the Veteran denied having any hypoglycemic episodes. The Board has also considered whether separate compensable ratings are warranted for the Veteran's service-connected erectile dysfunction. Compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent disability evaluation, with noncompensable complications to be considered as part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, DC 7913, Note (1). For the reasons discussed below, the Board finds that erectile dysfunction does not warrant a compensable rating. Erectile dysfunction is rated by analogy under 38 C.F.R. § 4.115b, DC 7522, which provides that deformity of the penis with loss of erectile power is rated as 20 percent disabling. A March 2014 VA treatment record notes that the Veteran sought treatment for priapism, which the examiner noted was ischemic priapism with diabetes mellitus as a possible risk factor as well as dehydration. The January 2021 VA examination showed that the Veteran did not take continuous medication for his erectile dysfunction, nor was there evidence of a voiding dysfunction or any deformity. While the record shows that the Veteran is unable to achieve an erection sufficient for penetration and ejaculation without medication, the record does not show any finding of penile deformity. Notably, in the March 2014 VA treatment record, the etiology of the priapism was unclear, and diabetes was only noted as a possible risk factor. The Veteran also does not claim deformity or argue such. Thus, although he experienced loss of erectile power, there is no lay or medical evidence of penile deformity shown. See Owens, supra. As such, a compensable rating for erectile dysfunction under DC 7522 is not warranted. Although a separate, compensable rating is not warranted for the Veteran's erectile dysfunction, the Board does note that he has been separately awarded special monthly compensation (SMC) based on the loss of use of a creative organ, effective from the date of service connection, to compensate for his inability to achieve an erection sufficient for penetration and ejaculation. See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). The Board also observes that separate compensable ratings have been assigned for diabetic nephropathy, peripheral neuropathy of the lower and upper extremities associated with type II diabetes mellitus, and Charcot's disease of the lower extremities. Accordingly, a rating of 40 percent is warranted prior to December 8, 2020, for the Veteran's service-connected type II diabetes mellitus with erectile dysfunction, however, the preponderance of the evidence is against assigning a rating in excess of 40 percent for the period on appeal. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the rating claim to the extent outlined above, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, supra; Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND Entitlement to a TDIU is remanded. As to the claim for a TDIU, while raised by the record (see Rice, supra), from the existing record the Board is not able to ascertain when, if ever, his service-connected disabilities prevented him from obtain and maintaining substantial gainful employment. See 38 C.F.R. § 4.16, Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Therefore, the Board finds that a remand is required to obtain from the Veteran a fully executed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, so the Board has the needed information to adjudicate whether his service-connected disabilities prevent him from obtain and maintaining substantial gainful employment given his prior vocational history, work experience, and education. See 38 U.S.C. § 5103A(b). While this issue is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). This issue is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records pertinent to this claim. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 3. Obtain and associate with the claims file a fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, whether he continues to be unemployed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevents him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. (Continued on the next page) Any help from the Veteran in obtaining this information would be appreciated. The form cited above is available on-line. The request should also notify the Veteran that his claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing at the VA Form 21-8940. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Saikh, 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.