Citation Nr: 21031692 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-21 086 DATE: May 24, 2021 ORDER Entitlement to service connection for hypertension is dismissed. Entitlement to a rating in excess of 20 percent for diabetes mellitus with bilateral nuclear cataracts, diabetic retinopathy, and erectile dysfunction (diabetes), is denied. FINDINGS OF FACT 1. A March 2021 rating decision granted the full benefit sought for entitlement to service connection for hypertension. 2. The Veteran's diabetes, at most, is managed by a restricted diet, requires oral hypoglycemic agents, and requires regulation of activities. CONCLUSIONS OF LAW 1. The appeal with respect to the claim of entitlement to service connection for hypertension is dismissed due to the absence of a controversy at issue. 38 U.S.C. § 7105; 38 C.F.R. § 20.204 2. The criteria for an evaluation in excess of 20 percent for diabetes have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to August 1969. In October 2020, the Board remanded the Veteran's claims of entitlement to service connection for hypertension and the Veteran's claim for an increased rating for diabetes. Dismissal In October 2020, the Veteran's claim for service connection for hypertension was remanded for additional development. In an October 2018 rating decision, the Regional Office (RO) granted the Veteran's claim for entitlement to service connection for hypertension. As this decision reflects an award of all benefits sought on appeal, and the appeal is thus considered satisfied in full. As such, there is no longer an issue in controversy, and a dismissal of this issue is appropriate. 38 U.S.C. § 7105 (d); 38 C.F.R. §§ 20.101, 20.202. Increased Rating General Principles and Regulations Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson, the Court noted an important distinction between an appeal involving a Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Procedural and Factual Background Here, in October 2005, the Veteran filed a claim for diabetes. In a February 2006 rating decision, service connection for diabetes was granted with a 20 percent rating effective October 27, 2005, under DC 7913. Subsequently, in an April 2006 rating decision, the Veteran's diabetes was rated to include bilateral nuclear cataracts. As the bilateral nuclear cataracts were non-compensable, the Veteran's diabetes with bilateral nuclear cataracts continued to be rated at 20 percent. The Veteran did not file a notice of disagreement contesting the initial rating. However, on July 14, 2015, the Veteran filed a claim of increase with respect to his service-connected diabetes. In a June 2015 VA rating decision, the RO continued the Veteran's rating of 20 percent but also included noncompensable complications of diabetes. Thus, the Veteran is currently rated for diabetes with bilateral nuclear cataracts, diabetic retinopathy, and erectile dysfunction. Given that compensation already has been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Therefore, the relevant temporal focus for this disability is one year prior to the date of receipt of the claim; thus, the appeal period begins on July 14, 2014. 38 C.F.R. § 3.400. In a March 2015 VA examination report for diabetes, the VA examiner noted that the Veteran's diabetes is managed by diet and he is prescribed oral hypoglycemic agents. The Veteran is not required to take insulin for his diabetes. The VA examiner noted that the Veteran's diabetes requires regulation of activities as part of medical management of his diabetes. The Veteran reported that he is unable to perform sexual activities with his wife, unable to read due to his eye problems, and unable to walk very long. The VA examiner noted that the Veteran has less than two medical visits a month for episodes of ketoacidosis or hypoglycemic reactions. However, the Veteran has not had any episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations in the last 12 months. The Veteran does not have any loss of weight due to his diabetes. He does have progressive loss of strength due to his diabetes. With respect to complications of diabetes, the VA examiner noted the Veteran has diabetic retinopathy and erectile dysfunction. In a March 2015 VA examination report for male reproductive systems, the VA examiner noted a diagnosis of erectile dysfunction with loss of penile power. In a June 2015 VA examination report for eye conditions, the Veteran's bilateral nuclear cataracts were noted as due to his diabetes. The Veteran reported his condition, which began with blurred vision and glare at night while driving, has gotten worse. The VA examiner noted that the Veteran's cataract condition is preoperative (cataracts are present). There is no aphakia or dislocation of the crystalline lens. There is no decrease in visual acuity or other visual impairment due to cataracts. The VA examiner noted bilateral retinopathy. There is no decrease in visual acuity or other visual impairment due to bilateral retinopathy. The VA examiner noted that there have not been any incapacitating conditions attributable to the Veteran's eye conditions. In a November 2020 male reproductive organ examination report, the VA examiner noted a diagnosis of erectile dysfunction due to a loss of penile power. Penile deformity was not noted. In a November 2020 VA examination report for diabetes, the VA examiner noted that the Veteran's diabetes is managed by prescribed oral hypoglycemic agents. Insulin and a restricted diet are not prescribed. The VA examiner noted that the Veteran's diabetes does not require regulation of activities as part of medical management of diabetes. The VA examiner noted that the Veteran visits less than two times a month for episodes of ketoacidosis or hypoglycemic reactions. However, the Veteran has not had any episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations in the last 12 months. The Veteran does not have any loss of weight due to his diabetes. The VA examiner noted that the Veteran does not have unintentional weight loss and loss of strength attributable to diabetes. With respect to complications of diabetes, the VA examiner noted diabetic peripheral neuropathy, erectile dysfunction, and bilateral nuclear cataracts. In a January 2021 eye condition examination report, the VA examiner noted that the Veteran's cataract condition is preoperative (cataracts are present). There is no aphakia or dislocation of the crystalline lens. There is no decrease in visual acuity or other visual impairment. The VA examiner noted that bilateral retinopathy was not observed at present examination. Diabetic retinopathy is not a permanent ocular condition, if blood sugar and A1C should improve, the retina will often not show current diabetic changes. Therefore, the VA examiner concluded that this condition is resolved at this time. The VA examiner noted that there have not been any incapacitating conditions attributable to the Veteran's eye conditions. The VA examiner also noted a diagnosis of posterior vitreous detachment. However, the VA examiner opined that this diagnosis is separate, distinct, and unrelated to the Veteran's diabetes. Given such, the diagnosis of posterior vitreous detachment is not considered for purposes of evaluating the Veteran's diabetes rating. Analysis The Veteran contends his service-connected diabetes warrants a higher rating than currently contemplated. As mentioned above, the Veteran's diabetes is rated at 20 percent for the entire period on appeal under Diagnostic Code 7913. Under 38C.F.R. §4.119, Diagnostic Code 7913, diabetes mellitus type II requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated 20 percent disabling. Diabetes mellitus type II requiring insulin, restricted diet, and regulation of activities, is rated 40 percent disabling. Diabetes mellitus type II 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, is rated 60 percent disabling. Diabetes mellitus type II 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, is rated 100 percent disabling. The rating schedule in Note 1 also instructs to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. Pursuant to Note 1 of the code section, the Veteran is currently assigned separate ratings for the following complications of diabetes: right lower extremity diabetic neuropath and left lower extremity diabetic neuropathy. The Veteran has not appealed the rating assigned for these separately service-connected disabilities and these matters are not currently on appeal. The criteria for the progressively increasing ratings for diabetes are stated in the conjunctive rather than the disjunctive (i.e., each level of increase in the rating requires that additional criteria to those for the lower rating must be met to warrant the increase). See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). In the present case, the Board finds that while the criteria are satisfied for a 20 percent rating for diabetes, a rating in excess of 20 percent for the Veteran's diabetes is not warranted. A 20 percent rating is warranted when diabetes requires insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. In the March 2015 VA examination report, the VA examiner opined that the Veteran's diabetes, while not requiring insulin, does require oral hypoglycemic agents, restricted diet, and regulation of regular activities. The November 2020 VA examiner opined that the Veteran's diabetes requires hypoglycemic agents. However, insulin, restricted diet, and regulation of regular activities is not required. Therefore, given that the Veteran's diabetes, at most, required oral hypoglycemic agents and restricted diet, the criteria for a 20 percent rating are met. However, the criteria for a 40 percent rating are not satisfied. Diabetes requiring insulin, restricted diet, and regulation of activities, is rated 40 percent disabling. Here, as stated above, the Veteran's diabetes has never required insulin. Thus, while the Veteran's diabetes when evaluated during the March 2015 VA examination, did require restricted diet and a regulation of activities, insulin was not required. Given such, the criteria of a 40 percent rating have not been met. Where the 40 percent rating is not satisfied, consideration of the other higher ratings is not warranted as a rating under DC 7913 is successive. Specifically, the Court has determined that the criteria of DC 7913 are successive and that the use of the conjunctive "and" in the criteria for a 40% rating shows that all elements must be met to warrant a 40% rating. See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013) (holding that, "because the 40% rating [for diabetes mellitus] does not contemplate alternative considerations, a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation"); Tatum v. Shinseki, 23 Vet. App. 152 at 155-56 (2009) (holding that the rating criteria of DC 7913 are successive); Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (holding that the use of the conjunctive "and" in the criteria for a 40% rating under DC 7913, requires that all criteria must be met to establish a 40% rating). Separate Ratings The Board has also considered whether the Veteran's bilateral cataracts, diabetic retinopathy, and erectile dysfunction, which are related to the Veteran's diabetes, should be rated separately. Under Note 1 of 38C.F.R. §4.119, Diagnostic Code 7913, noncompensable complications are considered part of the diabetic process and thus are not rated separately. Thus, in order to be rated separately, the Board must determine if compensable ratings for these disabilities are warranted. Bilateral Cataracts and Diabetic Retinopathy Therefore, the Board will address whether the Veteran's associated eye conditions warrant a compensable rating. Turning to the rating schedule, during the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Both the former and revised criteria provide for consideration of visual impairment that is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38C.F.R. §4.75 (a). The amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmannchart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Under the former criteria, Diagnostic Code 6027 (Cataract) instructed to evaluate preoperative cataracts and postoperative cataracts where a replacement lens is present (pseudophakia)based on visual impairment, while postoperative cataracts without are placement lens were to be evaluated under Diagnostic Code 6029, aphakia. Under the revised criteria, Diagnostic Code 6027 instructs to evaluate preoperative cataracts and postoperative cataracts where a replacement lens is present under the General Rating Formula for Diseases of the Eye, while postoperative cataracts without a replacement lens are to be evaluated under Diagnostic Code 6029. Importantly, the amendments also added Diagnostic Code 6040 for diabetic retinopathy. Under DC 6040, the disability would be rated under the General Rating Formula for Diseases of the Eye, as well. The former schedular rating criteria did not include Diagnostic Code 6040 for diabetic retinopathy. As such, for the period prior to May 13, 2018, the Board evaluates the Veteran's diabetic retinopathy under Diagnostic Code 6006 for retinopathy or maculopathy, which directed the rater to evaluate the condition under the General Rating Formula. The General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or incapacitating episodes, whichever results in a higher evaluation. Under the amended regulations, where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. 38C.F.R. §4.79. Cataracts The Board notes that he Veteran's bilateral cataracts are pre-operative (cataracts are still present). Thus, when evaluated under the former Diagnostic Code 6027 preoperative cataracts is evaluated based on visual impairment. Here in the June 2015 VA examination report, the VA examiner specifically noted there was no decrease in visual acuity or visual impairment due to the Veteran's cataracts. Given such, a compensable rating for bilateral cataracts is not warranted under the Diagnostic Code 6027. Also, under the revised criteria of Diagnostic Code 6027, effective May 2018, instructs to evaluate preoperative cataracts are to be evaluated under the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or incapacitating episodes, whichever results in a higher evaluation. However, the January 2021 VA examiner opined that there is no decrease in visual acuity or other visual impairment. The VA examiner noted that there have not been any incapacitating conditions attributable to the Veteran's eye conditions. Thus, the criteria for a compensable rating are not met. Diabetic Retinopathy Considering the medical evidence throughout the period on appeal, the Board finds that the Veteran's bilateral diabetic retinopathy does not warrant a separate compensable rating, as the Veteran has not experienced visual impairment or incapacitating episodes. Here, the June 2015 VA examiner opined that the Veteran's diabetic retinopathy, does not result in visual impairment or incapacitating episodes. Furthermore, the Board notes that in the January 2021 VA examination report, the VA examiner noted that bilateral retinopathy was not observed at present examination. Diabetic retinopathy is not a permanent ocular condition, if blood sugar and A1C should improve, the retina will often not show current diabetic changes. Therefore, the VA examiner concluded that this condition is resolved at this time. Given such, as the Veteran no longer has diabetic retinopathy, there can be no visual impairment or incapacitating episodes. Given that the criteria for a compensable rating are not met, the Veteran is not entitled to separate ratings for his bilateral cataracts and diabetic retinopathy. These disabilities are appropriately rated with his diabetes as part of the diabetic process. Erectile Dysfunction The Board finds that a compensable rating is not warranted with respect to the Veteran's erectile dysfunction. Notably, the Veteran's is already receiving special monthly compensation for the loss of use of a creative organ, and will not be addressed in this decision. Under DC 7522, a compensable rating for erectile dysfunction requires a physical deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b. Turning to the medical evidence of record, the VA examination reports of record reflect that the Veteran has a loss of erectile power. However, there is no evidence of penile deformity. As no penile deformity has been shown, a compensable rating for erectile dysfunction under DC 7522 is not warranted. It is noted that the Veteran has been granted entitlement to special monthly compensation based on the loss of use of a creative organ. 38 U.S.C. § 1114 (k); 38 C.F.R. § 3.350 (a). Consequently, erectile dysfunction does not meet the criteria for separate ratings, these disabilities are appropriately rated with the Veteran's diabetes as part of the diabetic process under Diagnostic Code 7913. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.