Citation Nr: 22018781 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 19-30 045 DATE: March 30, 2022 ORDER Entitlement to an evaluation in excess of 20 percent for diabetes mellitus type II is denied. REMANDED Entitlement to service connection for hypertension to include as due to herbicide exposure and as secondary to diabetes mellitus or posttraumatic stress disorder (PTSD) is remanded. Entitlement to an evaluation in excess of 30 percent for diabetic nephropathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran's diabetes mellitus required only restricted diet and one daily injection of insulin with an oral glycemic agent. CONCLUSION OF LAW The criteria for a disability rating higher than 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from February 1966 to February 1969. This appeal came before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a January 2022 Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus type II with erectile dysfunction and diabetic retinopathy is denied. 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 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 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, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 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). The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, 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). The Board finds that the Veteran's diabetes mellitus required only restricted diet, one daily injection of insulin, and an oral agent during the period on appeal. The Veteran is competent to report that he has not been able to engage in the same type or frequency of activities. His reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical evidence of record is against a finding that regulation of activities was required as part of the management of his diabetes during the period on appeal. In November 2016 VA treatment records the Veteran was encouraged to exercise to control his blood pressure. He was also advised about his poor diet in relation to his diabetes. The Veteran noted that he walked for exercise. The Veteran was provided with a VA examination to evaluate his diabetes mellitus in January 2018. The examiner noted that the Veteran's diabetes was managed by a restricted diet, an oral hypoglycemic agent, and one injection of insulin a day. The Veteran did not require regulation of activities as part of medical management of his diabetes. It was noted that the Veteran visited his diabetic care provider less than two times a month for episodes of ketoacidosis or hypoglycemia. He had no episodes of ketoacidosis or hypoglycemia that required hospitalization in the last 12 months. The Veteran did not exhibit progressive unintentional weight loss or loss of strength due to his diabetes. He was noted to have nephropathy and erectile dysfunction due to his diabetes. The Veteran was instructed to avoid any employment that would be extremely taxing to the immune system, to include employment that required exposure to extreme temperatures or prolonged stress. In August 2018 VA treatment records the Veteran stated that he did not consistently take his insulin injections. He stated that he went out of town and did not bring his insulin. In August 2019 VA medical records, it was noted that the Veteran's diabetes was well controlled and that he had lost 40 pounds due to dietary changes. The Veteran noted that he was not currently taking diabetic medications. August 2020 VA records indicated that the Veteran was noncompliant with diabetes medications. In February 2021 records the Veteran stated that his diabetes was well-controlled at home. The Board again notes that "regulation of activities" is part of treatment prescribed by a physician and it is not based on the Veteran's decision to refrain from engaging in certain activities. Based on the foregoing, the Board finds that an evaluation in excess of 20 percent is not warranted for the Veteran's diabetes mellitus. Higher ratings are available for diabetes mellitus requiring regulation of activities, defined as avoidance of strenuous occupational and recreational activities, or for episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations or at least twice a month visits to a diabetic care provider. The evidence of record weighs against such symptoms or treatments. There is no evidence of hospitalizations or treatment for episodes of ketoacidosis or hypoglycemic reactions. He has not been instructed to avoid strenuous occupational and recreational activities; on the contrary, his physicians have encouraged him to get more exercise, not less. Though the January 2018 examiner noted that the Veteran should avoid certain temperatures or levels of prolonged stress he indicated that it applied in the context of more extreme conditions. The Veteran has reported difficulty controlling his diabetes, but treatment records indicate that it is poorly controlled in large part because the Veteran had not adhered to diet and medication regimens. Thus, the Board finds that an evaluation in excess of 20 percent is not warranted for the Veteran's diabetes mellitus. The Veteran does not assert, nor does the record show, that he has any other complications of diabetes mellitus. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). The Veteran's diabetic nephropathy (discussed in the remand below) and erectile dysfunction are separately compensated, and the January 2018 VA examination and April 2017 VA treatment record noted that the Veteran did not suffer from diabetic neuropathy. Treatment records reflect mild to moderate diabetic retinopathy, but the January 2018 VA examiner indicated that the Veteran did not have retinopathy. Nevertheless, the persuasive evidence does not show that any retinopathy during the appeal period has risen to a compensable level. Therefore, at this point, it is considered part of the diabetic process. Accordingly, the persuasive evidence of record is against assigning a rating in excess of 20 percent during the period on appeal. REASONS FOR REMAND 1. Entitlement to service connection for hypertension to include as due to herbicide exposure and as secondary to diabetes mellitus or posttraumatic stress disorder is remanded. The Board finds that remand is required for an addendum VA opinion. The Veteran underwent VA examination in November 2018. The examiner found that the Veteran's diagnosed hypertension was less likely than not due to or aggravated by his service-connected PTSD with depressive disorder and alcohol dependence. The examiner stated that the clinical literature noted that cardiovascular risk factors and cardiovascular disease were more common among individuals with PTSD. The examiner then noted that depression also posed a risk for cardiovascular disease and that it was often comorbid with PTSD. The examiner cited a study that noted that hypertension prevalence was higher for people with PTSD with and without depression. He found that PTSD appeared to be related to hypertension independent of depression. In another VA opinion, the examiner determined that the Veteran's hypertension was not caused or aggravated by his service-connected diabetes mellitus. The examiner cited a medical study that noted that there was considerable evidence for an increased prevalence of hypertension in diabetic persons. The Board finds these opinions to be contradictory and confusing. The examiner denied any relation between the Veteran's hypertension and his service-connected PTSD and diabetes, but cited medical evidence that seemed to support a nexus between the conditions. The evidence cited by the examiner noted a correlation between hypertension and PTSD as well as a higher rate of hypertension in individuals with diabetes. As the examiner's opinion seems to be contradicted by his own rationale, a new VA opinion is required to clarify the opinions. The Board also finds that no direct service connection opinion was provided by the examiner. He addressed the Veteran's secondary service connection claims but did not determine whether the Veteran's hypertension was due to his time in service, to include as due to herbicide exposure. In an October 2007 statement, the Veteran stated that he was stationed in Vietnam for two periods of six months each on the U.S.S. Perkins. It is noted that the Veteran's DD-214 noted that he was awarded the Vietnam Service Medal and the Republic Vietnam Campaign Medal. As such, remand is required for addendum VA opinions. 2. Entitlement to an evaluation in excess of 30 percent for diabetic nephropathy is remanded. After the Veteran filed a claim for an increased evaluation for diabetes mellitus, the RO continued the 20 percent evaluation for diabetes mellitus and separately granted service connection for diabetic nephropathy at a noncompensable evaluation in a February 2018 rating decision. In a September 2019 rating decision, the evaluation for diabetic nephropathy was increased to 30 percent. Because this is not considered a full grant of the benefits sought on appeal, these issues are still before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Board finds that remand is required for further development. It is noted that during the pendency of the appeal, the regulations regarding genitourinary conditions were amended effective November 14, 2021. The Veteran's diabetic nephropathy was evaluated under DC 7541, which indicates that the condition should be rated under renal dysfunction. Renal dysfunction is rated pursuant to 38 C.F.R. § 4.115a. Prior to November 14, 2021, under 38 C.F.R. § 4.115a, the evaluation was based upon albumin, the Veteran's hypertension evaluation, edema, etc. From November 14, 2021, under 38 C.F.R. § 4.115a, the glomerular filtration rate (GFR) over three consecutive months, is the main factor for evaluation. First, the Board has determined that any adjudication for an increased rating for diabetic nephropathy under the old regulations would be premature as the next highest rating for the Veteran's diabetic nephropathy contemplates, in part, a rating for hypertension. In particular the next highest rating criterion includes: "[c]onstant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101." See 38 C.F.R. § 4.115a. Therefore, the Board has determined that the issue is intertwined with Veteran's remanded claim for hypertension. As held in Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) wherein the Court held that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another. Second, the Board finds that evaluation under the new genitourinary regulations would be premature as the Veteran's most recent relevant VA examination was in January 2018, prior to the regulation change. The new regulations base evaluation on the GFR, however the VA examinations and VA treatment records do not include information about the Veteran's GFR over three consecutive months. The January 2018 VA examination noted that the Veteran had renal dysfunction but only indicated that the Veteran's GFR was below 60 cc/ min/ 1.73m2. Similarly, the VA treatment records only note that the Veteran's GFR is less than 60 but does not note specific levels over three consecutive months. As such, the Board finds that remand is required for a new VA examination to evaluate the Veteran's GFR levels over three consecutive months. 3. Entitlement to a TDIU due to service-connected disabilities is remanded. Remand is required because entitlement to TDIU is inextricably interwined with the above pending service connection and increased evaluation claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the etiology of his hypertension. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the hypertension had onset in, or is otherwise related to, active military service, to include as due to herbicide exposure. The examiner is also asked to provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the hypertension is caused or aggravated by the service-connected PTSD or diabetes mellitus. 2. Provide the Veteran with an appropriate examination to determine the severity of the service-connected diabetic nephropathy. The examiner should address the rating criteria both under the old and new criteria. The examiner should address the functional impact of the Veteran's nephropathy, to include any occupational impact of it. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.