09-10 377
09-10 377
| Board of Vet. App. | Mar 31, 2017Background
- Veteran served active duty Aug 1968–Jun 1970 and appealed VA RO rating decisions from 2008, 2012, and 2014; Board remanded in Apr 2016 and additional exams obtained.
- Service-connected disabilities at issue: diabetic retinopathy, residuals of stroke, and type II diabetes mellitus (rated 20%).
- Key objective findings: visual acuity consistently 20/40 or better bilaterally; intermittent mild nonproliferative diabetic retinopathy; no documented incapacitating episodes from retinopathy.
- Stroke residuals: small internal capsular infarct (2006) with transient left-sided paresis historically, April 2010 exam showed bilateral intention tremor (mild), May 2014 exam showed largely normal strength and gait issues attributable to degenerative joint disease; minimum 10% rating applied for residuals.
- Diabetes management: insulin and restricted diet documented, but medical records and VA exams repeatedly found no physician-prescribed "regulation of activities" required; no recent hospitalizations for ketoacidosis or hypoglycemia.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Compensable rating for diabetic retinopathy | Veteran: retinal disease and related eye symptoms warrant a compensable rating | VA/Board: exams show mild nonproliferative retinopathy, no incapacitating episodes, acuity 20/40 or better, no visual field defect | Denied — no compensable rating (acuity and incapacitating-episode criteria not met) |
| Rating >10% for stroke residuals | Veteran: left-sided weakness and tremor justify >10% | VA/Board: objective testing shows at most mild convulsive tic (noncompensable) and other findings overlap with peripheral neuropathy due to diabetes | Denied — 10% retained (only mild tremor separate; other symptoms attributable to other service-connected conditions) |
| Rating >20% for diabetes mellitus type II | Veteran: contends physician-imposed regulation of activities warrants 40% | VA/Board: medical records and exams find insulin use and restricted diet but no regulation of activities; no qualifying hospitalizations or frequent specialist visits | Denied — 20% remains (no evidence of required regulation of activities) |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (VA duty to assist and development principles)
- Stegall v. West, 11 Vet. App. 268 (Vet. App.) (requirement of substantial compliance with Board remand directives)
- Hart v. Mansfield, 21 Vet. App. 505 (Vet. App.) (staged ratings for separate periods)
- Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir.) (medical evidence required to show restriction of activities)
- Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir.) (extraschedular referral consideration for combined effects of multiple disabilities)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (benefit-of-the-doubt doctrine)