Citation Nr: 22016446 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-30 118 DATE: March 22, 2022 ORDER A disability rating in excess of 60 percent for diabetes mellitus with erectile dysfunction and bilateral diabetic retinopathy is denied. FINDING OF FACT The Veteran's diabetes mellitus with erectile dysfunction and bilateral diabetic retinopathy has not been manifested by 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 rated. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for diabetes mellitus with erectile dysfunction and bilateral diabetic retinopathy are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service from May 1974 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing in February 2021; a transcript of the hearing is of record. Procedural History During the pendency of this appeal, in March 2021, the Board granted service connection for urinary incontinence, secondary to the service-connected diabetes mellitus, and granted a 40 percent evaluation for diabetes mellitus for the entire rating period on appeal. The Board then remanded the issue of entitlement to a rating in excess of 40 percent for further development. The Boards March 2021 grant of service connection for urinary incontinence is considered a full grant of the benefits on appeal for that claim. As such, the issue is no longer before the Board for appellate consideration. A.B. v. Brown, 6 Vet. App. 35 (1993). In June 2021, the RO combined previously assigned separate noncompensable ratings until for erectile dysfunction associated with diabetes mellitus and bilateral diabetic retinopathy into the Veteran's diabetes mellitus rating. See Rating Decision dated June 30, 2021; 38 C.F.R. § 4.119, DC 7913. Thus, the issue on appeal has been recharacterized on the title page above. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). The Veteran underwent a VA examination in September 2021 and the examination report is of record and has been reviewed. The Board finds substantial compliance with its March 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). In December 2021, the RO increased the rating to 60 percent for diabetes mellitus, effective July 31, 2015, but denied a rating in excess of 60 percent. See Rating Decision dated December 13, 2021; Supplemental Statement of the Case dated December 13, 2021. As the RO's grant of a 60 percent rating is considered a partial grant of the benefits sought on appeal for this claim, the issue of entitlement to a rating in excess of 60 percent remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings - Laws and Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Diabetes mellitus is evaluated under 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. Under DC 7913, a 60 percent rating is warranted for diabetes mellitus requiring 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. 38 C.F.R. § 4.119, DC 7913. 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. Id. Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. Id. The rating of diabetes under DC 7913 includes successive rating criteria, whereby the evaluation of each higher rating includes the criteria of each lower rating, such that, if a criterion is not met at any one level, a claimant can only be rated at the level that does not require the missing criterion. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). The Board finds that the words "with" and "plus," as used in the rating criteria are the equivalent of "and," signifying that each of the conditions listed in the provision must be met. The disjunctive "or" separates episodes of ketoacidosis and hypoglycemic reactions, signifying that either condition will satisfy that criterion, but that other criteria separated by conjunctives must also be satisfied. As the rating criteria are successive, the determination of entitlement to any rating in excess of 60 percent turns on a finding that the Veteran's diabetes mellitus requires 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. Rating Analysis The RO assigned a 60 percent disability rating for the Veteran's diabetes mellitus under DC 7913 based on one hospitalization a year or twice a month visits to a diabetic care provider for hypoglycemia. 38 C.F.R. § 4.119, DC 7913; Rating Decision dated December 13, 2021. The Veteran asserts entitlement to a higher rating. See Appellate Brief Presentation received February 4, 2022. As discussed below, the Board finds that the weight of the evidence does not establish that the criteria for a rating in excess of 60 percent are not met. Turning to the record, private treatment records dated October 2014 note that the Veteran reported experiencing a "couple" episodes of hypoglycemia after his discharge from the hospital for treatment of an aneurysm. An October 2015 VA examination reflects that medical management of the Veteran's diabetes mellitus included more than one prescribed insulin injection per day and regulation of activities. It was noted that the Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemia fewer than two times per month. He denied hospitalization for episodes of ketoacidosis or hypoglycemic reactions over the past 12 months, and he was negative for progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. The examiner noted diabetic peripheral neuropathy as a recognized complication of diabetes, and disorders likely due to diabetes included erectile dysfunction, a cardiac condition, and stroke. The examiner opined that the Veteran's diabetes mellitus did not impact his ability to work, although he noted that the Veteran's diabetic peripheral neuropathy slightly impeded his balance and maneuverability on uneven terrain. In a statement included with his September 2016 Notice of Disagreement, the Veteran said his insulin intake had increased greatly and that his activities were regulated. The Veteran underwent a VA examination in March 2017, reflecting that medical management of the Veteran's diabetes mellitus included a restrictive diet, oral medication, and more than one prescribed insulin injection per day, but regulation of activities was not required. The Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemia fewer than two times per month. He denied hospitalization for episodes of ketoacidosis reactions, however, the examiner noted one hospitalization for a hypoglycemic reaction over the past 12 months (Section 2d). However, in the remarks section of the examination form (Section 7), the examiner noted that there were no reported hospitalizations for control of diabetes. The Veteran was negative for progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. The examiner noted diabetic peripheral neuropathy and diabetic retinopathy as a recognized complication of diabetes, and disorders likely due to diabetes included erectile dysfunction, cardiac condition, and stroke. The examiner opined that the Veteran's diabetes mellitus impacted his ability to work in that the prior stroke, as a complication of diabetes, made it difficult for the Veteran to work full time in a sedentary job. In January 2019 private treatment notes, the Veteran's treating physician, Dr. Goodale, noted that the Veteran's diabetes control was improving with improved A1C since October 2018, and that he was "restricted from performing strenuous physical activities due to his diabetes." See Private treatment records dated January 30, 2019. Private outpatient treatment notes dated July 2019 reflect that the Veteran was negative for hypoglycemia at that time, but his spouse reported random hypoglycemia, with one episode resulting in a call to emergency medical services. Treatment notes do not reflect that the Veteran was transported or hospitalized at that time. Additional July 2019 private treatment notes reflect that the Veteran was admitted to a hospital after experiencing left arm numbness, tingling, and hypoglycemia. Upon admission, the Veteran was evaluated for stroke and heart problems, and it was noted that his hypoglycemia had resolved. Over the course of his 12 day hospital stay, the Veteran underwent coronary artery bypass surgery, and it was noted that the Veteran's glucose levels were trending near goal without hypoglycemia and glucose level monitoring was negative for hypoglycemia. In August 2019, private treatment records reflect that the Veteran had experienced hypoglycemia. His insulin dosage was decreased. In September 2019, his private physician noted that the Veteran's glucose levels were improving. During the February 2021 Board hearing, the Veteran said his doctor restricted him from performing strenuous activities due to his diabetes, and his treatment included taking insulin, observing a restricted diet, and avoiding strenuous activities. He also endorsed a history of hypoglycemia but denied hospitalization due to diabetes over the past year. See Board hearing transcript dated February 1, 2021 at pgs. 3-4, 8-9. During the hearing, the Veteran said he was working but was approaching retirement. Id. at pg. 10. During a September 2021 VA examination, the examiner reported that the Veteran's diabetes mellitus was managed by a restrictive diet, oral medication, and more than one prescribed insulin injection per day, but regulation of activities was not required. The Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemia fewer than two times per month. He denied hospitalization for episodes of ketoacidosis or hypoglycemic reactions over the past 12 months, and he was negative for progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. The examiner noted diabetic peripheral neuropathy as a recognized complication of diabetes, and disorders likely due to diabetes included erectile dysfunction, cardiac condition, stroke, and voiding dysfunction/urinary frequency. The examiner opined that the Veteran's diabetes mellitus does not impact his ability to work. Based on review of the evidence, both lay and medical, the Board finds that a disability rating in excess of 60 percent is not warranted as there is no indication throughout the rating period of 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. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his diabetes mellitus. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability is more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the competent medical evidence offering detailed specific determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In sum, the evidence does not support the criteria for a rating in excess of 60 percent for diabetes mellitus with erectile dysfunction and bilateral diabetic retinopathy, and the Veteran's claim must be denied. In regard to complications of diabetes mellitus, the Veteran is currently service connected for erectile dysfunction, bilateral diabetic retinopathy, urinary incontinence, depressive disorder, coronary artery bypass graft, stroke residuals, and diabetic peripheral neuropathy of the left lower extremity. Separate compensable ratings are assigned for all of these service-connected disorders except erectile dysfunction and bilateral diabetic retinopathy, which were combined with the diabetes mellitus rating in June 2021 as noted above. Regarding the Veteran's erectile dysfunction, a September 2021 VA examination reflects normal anatomy with no penis deformity or abnormality noted. As such, no compensable rating is warranted for erectile dysfunction. 38 C.F.R. § 4.115b, DC 7522. Regarding the Veteran's bilateral diabetic retinopathy, the treatment records and VA examinations are negative for incapacitating episodes. Thus, a compensable rating is not warranted for diabetic retinopathy. 38 C.F.R. § 4.79, DCs 6006, 6066. (Continued on the next page) Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.