Citation Nr: 1718073	
Decision Date: 05/24/17    Archive Date: 06/05/17

DOCKET NO. 12-04 625	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a disability rating in excess of 20 percent for diabetes mellitus.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Cheng, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1966 to January 1968. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In July 2014, the Board remanded the claim for further development. There was substantial compliance with the Board's remand directives to decide the claim for an increase rating for diabetes mellitus on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dement v. West, 13 Vet. App. 141, 146-47 (1999).


FINDING OF FACT

Throughout the appeal, the Veteran's diabetes mellitus did not require regulation of activities and did not result in episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospital visits per year or twice a month visits to a diabetic care provider.


CONCLUSION OF LAW

The criteria for a disability rating for diabetes mellitus in excess of 20 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.119, DC 7913 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Veteran was provided VA examinations for diabetes mellitus in November 2014, March 2011, and August 2007. In addition, a VA addendum medical opinion was provided in January 2015. The VA examiners reviewed the Veteran's medical history and current symptoms, made clinical observations, performed physical examinations, and collectively provided clear explanations in support of the opinions and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 

The VA examinations and opinions during the appeal period are responsive to the July 2014 Board remand directives and are adequate to decide the Veteran's increase rating claim for diabetes mellitus on appeal. 

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.

Disability ratings 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2016). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016). The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7 (2016). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. The Rating Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14 (2016).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Diabetes Mellitus

The Veteran contends that his diabetes mellitus disability should be rated higher than the currently-assigned disability rating of 20 percent under 38 C.F.R. § 4.119, DC 7913. Specifically, the Veteran asserts that the treatment required to control his diabetes mellitus has increased since his original diagnosis.

Diabetes mellitus is evaluated under 38 C.F.R. § 4.119, DC 7913. Under DC 7913, a 10 percent rating is warranted for diabetes mellitus that is manageable by a restricted diet only. A 20 percent rating is warranted where insulin and restricted diet, or; use of oral hypoglycemic agent and restricted diet is required. A 40 percent rating is warranted where insulin, restricted diet, and regulation of activities is required. A 60 percent rating is warranted for diabetes mellitus 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. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulations 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. 38 C.F.R. § 4.119, DC 7913.

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 criteria for rating diabetes mellitus are conjunctive, meaning that each element of the criteria is needed to meet the requirements for the specified evaluation. See Camacho v. Nicholson, 21 Vet. App. 360 (2007); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met).

The evidence indicates that throughout the appeal period, the Veteran's diabetes mellitus, at worst, was being managed by a restricted diet, insulin, and oral hypoglycemic agents. Furthermore, the evidence shows that the Veteran did not require regulation of activities as part of his treatment regimen at any point in the appeal period. In November 2014, the Veteran was afforded a VA examination for diabetes mellitus, the examiner determined that the Veteran's diabetes mellitus was managed by restricted diet and insulin but did not require regulation of activities. In the November 2014 VA examination report, the physician noted that the Veteran required visits less than two times per month to his diabetic care provider for episodes of ketoacidosis and hypoglycemia. The examination report also reflects that the Veteran did not have episodes of ketoacidosis or hypoglycemic reactions that required hospitalization. The Veteran did not experience progressive unintentional weight loss or loss of strength attributable to diabetes mellitus. 

In a March 2011 VA examination report, the examiner indicated that the Veteran denied episodes of ketoacidosis or hypoglycemic reactions that required hospitalization in the 12 months prior to the examination. The Veteran reported 4 to 5 episodes of hypoglycemia since he started insulin therapy but the episodes did not require a visit to his diabetic care provider and were resolved with self-treatment with orange juice and oral sugar tablets. The Veteran was on a restricted diet and reported an intentional 5 pound weight loss. The VA examiner noted that the Veteran monitored his blood sugar closely when he exercised but it did not interfere with his daily activities. The Veteran walked in his neighborhood for exercise about 30 to 45 mins four times a week. The VA examiner noted that the Veteran had to be careful about exercise due to hypoglycemia but there is no indication that a prescribed regulation of activities was required.

In an August 2007 diabetes mellitus examination performed at the direction of VA, the examiner indicated that the Veteran did not have a history of diabetic ketoacidosis or problems with hypoglycemia. The Veteran on average visited the doctor 6 times per year for diabetes and did not have progressive weight loss or loss of strength. Treatment for diabetes was indicated as medication and metformin two times per day.

VA medical records from September 2013, March 2013, June 2012, January 2012, and December 2010 indicate that for the Veteran's hypertension, he was advised on lifestyle modifications including weight control, symptom limited exercises, moderation of salt/ethanol intake, and blood pressure monitoring. The medical professionals noted that a healthy diet and symptom limited exercise were discussed with the Veteran. Specifically, a September 2013 VA medical record the medical professional noted that the Veteran was counseled on importance of regular exercise and/or physical activity in the control of blood pressure. The Veteran was also instructed to try to exercise at least 30 minutes 3 times per week if possible and that any increase in physical activity may be useful in controlling blood pressure and specific recommendations for lifestyle modifications were made to the Veteran to help improve blood pressure control. Additionally, the examiner noted that the Veteran's diabetes mellitus was controlled. An August 2014 VA medical record indicates that the Veteran was instructed to continue with weight control, American Diabetes Association diet, symptom limited exercise, and Metformin. 

The preponderance of the evidence is against a finding that supports entitlement to an increased disability rating at any point during the appeal period. The medical evidence demonstrates that the Veteran's diabetes mellitus has been medically managed through a combination of insulin, oral hypoglycemic agents, and a restricted diet; this satisfies the criteria for a 20 percent disability rating and no higher. 38 C.F.R. § 4.l19 DC 7913. 

The Board has also considered the lay evidence of record. In February 2017 and February 2011 statements the Veteran asserted that his diabetes mellitus treatment regimen was not accurately reflected in consideration of his disability rating percentage for diabetes mellitus.

In August 2014 and June 2012 statements, the Veteran contended that insulin and regulation of activities were required as part of his treatment regimen for diabetes mellitus. In an August 2011 statement, the Veteran asserted that he required both insulin and oral medication. In the December 2011 substantive appeal (VA Form 9), the Veteran contended that he used insulin and had hypoglycemia. In the June 2012 statement, the Veteran asserted that he suffered from hypoglycemia and restricted his physical activities based on the advice of his doctor. He stated that his doctor advised him that due to the fact that he controlled his hypoglycemia through sugar supplements and limited physical activity, doctor appointments were not necessary on a regular basis. The Veteran also explained that he would visit the doctor at every hypoglycemic episode if documentation was required to substantiate his claim. 

In a March 2012 statement from the Veteran's representative, the Veteran asserted that the March 2011 VA examiner did not render a medical opinion as to whether regulation of activities was required in the Veteran's treatment regimen for his diabetes mellitus. 

In regard to the Veteran's December 2011 and June 2011 assertions that his diabetic condition manifested in hypoglycemia and required insulin, DC 7913 provides a 40 percent disability rating for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. The evidence does not show that the Veteran's diabetes mellitus required regulation of activities at any point in the appeal period. DC 7913 provides a 20 percent disability rating for diabetes mellitus requiring insulin and a restricted diet or oral hypoglycemic agent and a restricted diet. The Veteran's disability rating remains at 20 percent regardless of the form of medication used, either one or both injectable insulin or oral hypoglycemic agents, because a regulation of activities was not was not necessary for management of the Veteran's diabetes mellitus. As the rating criteria are conjunctive, for a higher 40 disability rating to be warranted, insulin, restricted diet, and regulation of activities are all required to be a part of the Veteran's treatment regimen. 38 C.F.R. § 4.119, DC 7913. See Camacho, 21 Vet. App. 360. See also Melson, 1 Vet. App. 334.

A 60 percent rating is warranted for diabetes mellitus 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. There is no question that the Veteran's diabetes required a restricted diet. The evidence does not indicate that the Veteran had episodes of hypoglycemia which required one or two hospitalizations per year or twice a month visits to a diabetic care provider. While the Veteran contended that his diabetic condition would require additional visits to a diabetic care provider due to episodes of hypoglycemia without self-treatment, provided that a regulation of activities was not necessary as part of his prescribed diabetic treatment regimen, the Veteran's disability rating would not change regardless because the rating criteria is conjunctive. Id. Furthermore, the fact that the Veteran was able to self-treat his hypoglycemic episodes reveals that the hypoglycemic episodes are not to a level of severity which would require treatment by a diabetic care provider or hospitalization. As the rating criteria are conjunctive, for a higher 60 disability rating to be warranted, insulin, restricted diet, regulation of activities, and episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider are all required. 38 C.F.R. § 4.119, DC 7913. See Camacho, 21 Vet. App. 360. See also Melson, 1 Vet. App. 334.

"Regulation of activities" is defined by DC 7913 as the "avoidance of strenuous occupational and recreational activities." Medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho, 21 Vet. App. 360. It is clear that the term "regulation of activities" should be read in the context of how physical activities can adversely affect one's ability to control a diabetic condition. 

The lay statements from the Veteran do not support an indication of "regulation of activities" as defined by DC 7913 above. The Veteran does not describe an avoidance of strenuous occupational and recreational activities of how physical activities adversely affected his diabetic condition. VA Medical records from September 2013, March 2013, June 2012, January 2012, and December 2010 indicate that the Veteran was counseled on the importance of regular exercise and specific lifestyle modifications were made in an attempt to control the Veteran's hypertension. The medical records do not indicate that an avoidance of strenuous occupational and recreational activities were prescribed in the context of how physical activities can adversely affect one's ability to control a diabetic condition but instead exercise was recommended in an effort positively affect his health including his hypertension and diabetic condition. See Camacho, 21 Vet. App. 360.

The preponderance of the evidence is against a finding that a medical treatment provider has recommended avoidance of strenuous physical activity in an effort to better control the Veteran's diabetes. To the contrary, the medical evidence, specifically the November 2014 VA examination report, reveals that throughout the appeal period, the Veteran did not require regulation of activities as part of his treatment regimen for diabetes mellitus. Similarly, the November 2014, May 2011, and August 2007 VA examination reports show that the Veteran did not have episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. Accordingly, a disability rating of 40 percent or higher for a diabetes mellitus disability is not warranted. 38 C.F.R. § 4.119 DC 7913.

The Board has considered application of additional DCs that are raised by the evidence of record. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this regard, the Board has considered whether the Veteran is entitled to separate disability ratings for complications of his diabetes mellitus; however, service connection has already been granted for the identified complications of the Veteran's diabetes. 

In an August 2008 rating decision, service connection was granted for gout involving the right great toe, right knee, and left foot associated with the service-connected diabetes mellitus at a noncompensable rating, effective June 28, 2007. Service connection was also granted for hypertension associated with diabetes mellitus at a 10 percent disability rating, effective June 28, 2007. Service connection was granted for erectile dysfunction associated with diabetes mellitus at a noncompensable rating, effective June 28, 2007. This disability was combined with the Veteran's diabetes mellitus, and is considered included within the 20 percent disability rating as the severity of this disability is noncompensable. 38 C.F.R. § 4.119, DC 7913, Note (1). In addition, special monthly compensation based on loss of use of a creative organ was also granted, effective June 28, 2007. In a December 2010 rating decision, the evaluation of the Veteran's service-connected gout associated with diabetes mellitus was increased to 20 percent disabling, effective July 16, 2009.
 
In the November 2014 VA examination report, the examiner also noted that diabetic peripheral neuropathy and diabetic retinopathy were recognized complications of diabetes mellitus. However, a May 2014 VA medical record indicates that the Veteran's neurologic examination was intact (normal) and a June 2014 VA medical record, an ophthalmology note, reflects that the Veteran did not have diabetic retinopathy. The November 2014 VA examiner only noted hypertension and erectile dysfunction as conditions that are at least as likely as not due to diabetes mellitus in his examination report. The Veteran is in receipt of service-connection for both of these conditions, as discussed above. Accordingly, the Board finds that entitlement to a separate disability rating for complications caused by diabetes mellitus other than those already service-connected is not warranted.

The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the competent medical evidence, which offers detailed and specific determinations relating to the rating criteria, is the most probative evidence with regard to evaluating the pertinent symptoms for Veteran's diabetes mellitus. The lay testimony has been considered together with the probative medical evidence in clinically evaluating the severity of the Veteran's current symptomatology. The Board has accorded more probative value to the opinions provided by medical professionals, as they are in the best position on whether the Veteran's activities need to be regulated.

For these reasons, the Board finds the preponderance of the evidence weighs against entitlement to an increased disability rating for diabetes mellitus at any point during the appeal period. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is denied.



____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs