Citation Nr: 22012607 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 17-50 754 DATE: March 4, 2022 ORDER Entitlement to a rating higher than 60 percent for Diabetes Mellitus, Type II (DMII), is denied. Entitlement to a compensable rating for hypertension is denied. Entitlement to a compensable rating for erectile dysfunction (ED) is denied. REMANDED Entitlement to service connection for open angle glaucoma is remanded. Entitlement to a compensable rating for diabetic retinopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has not had 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. 2. During the review period, his hypertension has not manifested in diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. Also, he has not had both a history of diastolic pressure predominantly 100 or more and requiring continuous medication for control. 3. Although there is no disputing he has ED, the medical evidence of record does not show a physical penile deformity because of it. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to a rating higher than 60 percent for the DMII. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code (DC/Code) 7913. 2. The criteria are not met for entitlement to a compensable rating for the associated hypertension. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.31, 4.104, DC 7101. 3. The criteria are not met for entitlement to a compensable rating for the associated ED. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.115a, 4.115b, DC 7599-7522 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably from May 1979 to June 1983. This appeal originates from July and August 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). According to 38 U.S.C. § 7105(e), for cases in which a Substantive Appeal (VA Form 9 or equivalent) is received on or after February 2, 2013, if the claimant or the claimant's representative submits evidence to the AOJ or the Board for consideration in connection with the claims on appeal, the Board may consider the evidence in the first instance unless the claimant or representative requests in writing that the AOJ instead initially consider the evidence. This automatic waiver is an exception to the general requirement of a waiver of initial AOJ review or provision of a Supplemental Statement of the Case (SSOC) considering new pertinent evidence. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. Here, a VA Form 9 was submitted regarding the Veteran's claims in October 2017. In May 2019 and July 2021, his representative submitted additional evidence in the way of copies of VA treatment records relating to each of these claimed disabilities. As he did not request initial AOJ consideration of this additional evidence, waiver of this right is assumed, and the Board will proceed to considering these claims. 1. Entitlement to a rating higher than 60 percent for DMII is denied. The Veteran contends that he is entitled to a higher rating because he receives more than one dose of insulin per day. DC 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 10 percent rating is warranted when diabetes is manageable by restricted diet only. 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 (so the Veteran's existing 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 higher 100 percent rating is warranted when the 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 his favor. See Johnson v. Wilkie, 30 Vet. App. 245 (2018). Thus, the determinative issue in this appeal is whether the Veteran's diabetes requires more than one daily injection of insulin, but also 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. Treatment notes in the file confirm the Veteran receives more than one daily injection of insulin each day (indeed, the Board sees that he receives daily injections and is on an insulin pump). Treatment notes also indicate he has a restricted diet as another modality of treatment and requires regulation of his activities owing to a history of hypoglycemia. However, his treatment records also indicate that he has not experienced episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider. Rather, according to VA treatment notes, he was last hospitalized for diabetic ketoacidosis in December 2014, so several years ago. And, while treatment notes indicate he, at most, has attended monthly visits to a diabetic care provider, he has not, during the appeal period, had weekly visits to a diabetic care provider. Consequently, the Board finds that the Veteran has not had the regulatory mandated 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. He is competent to report receiving more than one dose of insulin per day, and his reports concerning this are credible since substantiated by his treatment records. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). But, as mentioned, his medical treatment records do not also show that his diabetes requires at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight or strength. Accordingly, the evidence of record persuasively weighs against assigning a rating higher than 60 percent for the DMII. The evidence is not in "approximate" (meaning nearly equal) balance concerning this, so the benefit-of-the-doubt doctrine or rule does not apply. Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to a compensable rating for associated hypertension is denied. The Veteran contends that he is entitled to a higher (i.e., compensable) rating for the hypertension associated with his DMII. Hypertension is rated under 38 C.F.R. § 4.104, DC 7101, which concerns hypertensive vascular disease (hypertension and isolated systolic hypertension). According to DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. The term "predominant" is not defined in the rating criteria. Merriam-Webster defines predominant to mean "being most frequent or common." See, e.g., "predominant," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. For the reasons and bases that will be discussed, the Veteran's hypertension has not more nearly approximated these criteria commensurate with a higher 10 percent rating. His treatment notes indicate his blood pressure has been well-maintained throughout the review period. Prior to the review period, though it is noted he had a history of hypertension, and consequently requires continuous medication to treat or manage it, his diastolic pressure has not been predominantly 100 or more. For example, on June 5, 2015, his blood pressure measured 107/67; on September 22, 2015, it was recorded as 113/70; on June 21, 2016, it was recorded as 127/73; on October 21, 2016, it was recorded as 120/68; and on July 18, 2017, it was recorded as 132/74. So, on all those occasions his diastolic pressure (the bottom number of the reading) was far less than 100. More recently, the Veteran's blood pressure was recorded as 116/70 in July 2020. In September 2020, it was recorded at 120/67 and 127/67. In January 2021, it was recorded as 139/77. So, his diastolic pressure again was well below 100 even on those several additional occasions. Consequently, during the review period, indeed, even prior, diastolic pressure has measured between around 67 to 74, which is well below 100. Additionally, during the review period, systolic pressure has ranged from around 107 to 139, which is well below 160. Thus, while the Veteran requires continuous medication to keep his blood pressure within normal limits, he clearly does not have a history of diastolic pressure measuring 100 or greater. Treatment records from October 2003, so even well before the period under consideration, note his blood pressure was 110/70. In December 2002, it was 132/74. In October 2001, it was 123/61. There are times when VA adjudicators cannot consider the benefits ("ameliorative effects") of medication used to treat the service-connected disability at issue, but there also are occasions, like here, when VA adjudicators conversely can because use of medication is specifically contemplated in the criteria of the applicable DC (use of "continuous medication for control"). See Jones v. Shinseki, 26 Vet. App. 56 (2012). Moreover, as discussed, the Veteran has not had sufficiently elevated blood pressure readings either during or even before the period under consideration (i.e., appeal period) to warrant any higher rating. See Wilson v. McDonough, No. 19-6020, 2021 U.S. App. Vet. Claims LEXIS 2208 (Dec. 20, 2021) (explaining that VA adjudicators must consider historical blood pressure readings, not just those from during the specific time frame under consideration). Accordingly, the Veteran's hypertension has not manifested in diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. Also, he has not had a history of diastolic pressure predominantly 100 or more and required continuous medication for control. There is no reasonable doubt to be resolved in his favor; his hypertension does not more nearly approximate the criteria for a higher 10 percent or greater rating. So, as the criteria for a 10 percent rating under DC 7101 are not met, a 0 percent (noncompensable) rating is warranted. See 38 C.F.R. § 4.31 (explaining that, in every instance where the schedule does not provide a 0 percent evaluation for a DC, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met). 3. Entitlement to a compensable rating for ED is denied. The Rating Schedule does not provide a DC for rating ED (as the term applies in this case, i.e., the inability to maintain an erection). However, effectively since April 2, 2004, the Veteran has been receiving a "higher" rate of monthly compensation (i.e., special monthly compensation (SMC)) under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ. That aside, a compensable rating is available for penile deformity under DC 7522, which provides for a 20 percent rating when both deformity and loss of erectile power are present. 38 C.F.R. § 4.115b, DC 7522. But having only one or the other is insufficient. A penile deformity is a distortion of the penis, either internal or external, so a physical deformity apart from loss of erectile power. See, e.g., Williams v. Wilkie, 30 Vet. App. 134 (2018). To reiterate, in every instance where the schedule does not provide a 0 percent evaluation for a DC, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. A higher rating of 30 percent is available for the removal of half or more of the penis or removal of both testes. 38 C.F.R. § 4.115b, DC 7520, 7524. The question for the Board therefore is whether the Veteran's ED manifestations warrant a compensable evaluation. The Board finds that they do not. On VA examination in February 2007, the Veteran said he was unable to achieve erection. There is no indication he used medication for treatment of his ED. The examiner noted the Veteran did not have a penile deformity. In May 2016, the Veteran submitted a private medical opinion from his treating physician confirming that he had received a diagnosis of ED but not additionally addressing whether he also has a physical penile deformity (external or internal). Further, treatment notes do not contain any indication the Veteran has complained about or been treated for a physical penile deformity. Consequently, entitlement to a compensable rating for the ED is not warranted because there is no indication of penile deformity, even accepting there is loss of erectile power. Thus, this claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for open angle glaucoma is remanded. 2. Entitlement to a compensable rating for diabetic retinopathy is remanded. 3. Entitlement to a TDIU is remanded. The Veteran contends he is entitled to a higher rating for his diabetic retinopathy. He also contends that he is entitled to service connection for his open-angle glaucoma. He was provided a VA examination in June 2015, which confirmed he had diagnoses of pigmentary glaucoma, proliferative diabetic retinopathy, and cataract. Optic atrophy was also noted and found to be associated with a previous episode of optic neuritis but related to his non-service-connected multiple sclerosis (MS). During his examination, the Veteran was found to require continuous medication for his glaucoma. His visual acuity measured 20/40 or better, bilaterally, so in each eye. He was also observed to have a visual field defect with contraction of his visual field, which the examiner attributed to glaucoma rather than to diabetic retinopathy. The examiner also noted that the Veteran's visual impairment was, in part, caused by his optic atrophy owing to the MS. His visual field defect was not attributed to his service-connected diabetic retinopathy. The examiner also clarified that none of the Veteran's other eye conditions were related to his service connected DMII. No further explanation was provided, however, as to why none of his other eye conditions (namely, his glaucoma) were related to his service connected DMII. Moreover, the examiner also did not provide an opinion with accompanying rationale as to whether the Veteran's open-angle glaucoma is directly related to his service or whether his service-connected diabetic retinopathy (or DMII) aggravate his glaucoma or any of his other eye conditions. Therefore, before the Board can decide the claim of entitlement to service connection for open angle glaucoma, an addendum opinion is needed to provide this additionally required explanatory rationale. Moreover, because a decision on the remanded claim of entitlement to service connection for open-angle glaucoma could significantly impact a decision on the claims of entitlement to a compensable rating for the diabetic neuropathy and a TDIU, these claims are "inextricably intertwined". See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) Thus, consideration of this derivative TDIU claim must be deferred pending completion of the additional development being directed concerning the inextricably intertwined claims. Accordingly, these claims are REMANDED for the following action: Obtain an addendum opinion regarding whether the Veteran's open-angle glaucoma or cataracts are at least as likely as not a) directly related or attributable to his service. If not directly related to his service, the examiner is asked to additionally opine on whether the glaucoma and cataracts instead are secondary to the Veteran's already determined to be service-connected DMII and associated diabetic retinopathy meaning b) caused OR c) aggravated by these service-connected disabilities. [NOTE: Whether the Veteran needs to be re-examined (meaning undergo another in-person examination) to provide this additional medical comment is left to the discretion of the clinician designated to provide the addendum opinion.] To assist in making these important determinations, the claims file, including a complete copy of this decision and remand, must be made available to the examiner for review and consideration of the relevant history. When responding, whether favorably or unfavorably, it is essential the examiner provide explanatory rationale preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.