Citation Nr: 1724813 Decision Date: 06/29/17 Archive Date: 07/10/17 DOCKET NO. 13-08 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 40 percent for type II diabetes mellitus with microalbuminuria. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1966 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a October 2011 rating decision of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In February 2014, the Veteran requested a hearing in written correspondence. The Board remanded the claim to obtain that hearing in March 2014. In August 2014, that hearing request was withdrawn in correspondence submitted by the Veteran. In April 2016, the Board remanded the claim again to obtain another VA examination and additional private treatment records that the Veteran had indicated remained outstanding. The VA examination was conducted in May 2016. The private treatment records were obtained in June 2016. In August 2016, the RO granted the Veteran a 40 percent rating for his diabetes mellitus beginning in January 2011. As this grant did not provide for a full 100 percent evaluation, the claim is now again before the Board. The issues of service connection for hypertension, peripheral vascular disease, and a total disability rating based on individual unemployability (TDIU) have been raised by the record in a May 2016 disability questionnaire completed by the Veteran's private physician, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over those issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). FINDING OF FACT The Veteran's diabetes mellitus requires oral medication, a restricted diet, and regulation of activities, but does not result in ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or visits to a diabetic care provider more than once a month. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.7, 4.119, Diagnostic Code 7913 (2016). REASONS OR BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The VCAA, in part, describes the VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The VCAA applies to the instant claim for increased rating for diabetes mellitus. The notice requirements have been met. VA's duty to notify was satisfied by letters dated April 2004 and February 2011. See 38 U.S.C.A. § 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The February 2011 letter notified the Veteran of the information needed to substantiate and complete his increased rating claim, including notice of information that he was responsible for providing and of the evidence that VA would attempt to obtain. The letter also provided notice as to how VA assigns disability ratings and effective dates. Regarding the duty to assist, the Veteran's service treatment records (STRs) and relevant post-service treatment records have been obtained. The agency of original jurisdiction (AOJ) arranged for appropriate VA examinations which were held in March 2011 and May 2016. The Board finds that the clinical findings and informed discussion of the history and cause of the Veteran's diabetes in those examinations were sufficient for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-300 (2008). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the matter of increased rating for diabetes, and that no further development of the evidentiary record in these matters is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria Initially, the Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's diabetes has been assigned a 40 percent rating under Diagnostic Code 7913 (for diabetes) and the Board will continue to use this diagnostic code to evaluate his service-connected diabetes. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the [Rating] Schedule, it may not be rated by analogy."). Under the rating criteria listed in diagnostic code 7913, a 100 percent rating is assigned for diabetes that requires more than one daily injection of insulin, restricted diet, and regulation of activities (defined as 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, Diagnostic Code 7913. A 60 percent rating is assigned for diabetes that requires 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. Id. A 40 percent rating is assigned for diabetes that requires insulin, restricted diet, and regulation of activities. Id. The term "regulation of activities" means that a claimant must have medical evidence showing a need to avoid strenuous occupational or recreational activities. Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board will grant the Veteran's claim if the evidence supports the claim or is in relative equipoise. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background In a March 2011 VA examination, the examiner noted that the Veteran had no history of diabetes-related hospitalization or surgery. Additionally, she noted that there were episodes of hypoglycemia, but that none of the events caused hospitalization. The examiner noted that the Veteran visited a diabetic care provider monthly or less often. Additionally, the Veteran was instructed to follow a restricted diet, but was not restricted in his ability to perform strenuous activities. In that examination, the Veteran reported that he did not have symptoms of peripheral vascular disease, visual disorders, or other diabetic complications. He did report a history of hypertension since January 2008. The examiner noted that the Veteran had cardiovascular disease and kidney disease as potential diabetic complications. In correspondence dated February 2012, the Veteran reported that while he had told the examiner that he had not had any periods of hospitalization from ketoacidosis or hypoglycemia, he did have "numerous hypoglycemic reactions with symptoms such as confusion, dizziness, feeling shaky, irritability, pounding heart, sweating, trembling, weakness, and anxiety." He said that the reason he had not been hospitalized is that he had taken educational classes that had helped him deal with these episodes. In January 2014, the Veteran's private physician sent in a letter documenting the Veteran's diabetic neuropathy that indicated the presence of sensory peripheral neuropathy and the possibility of restless leg syndrome. In private treatment records dated July 2013 to October 2014, private physicians noted that the Veteran had a long history of type II diabetes with "very marginal control due to fairly significant dietary noncompliance, heavy carbohydrate [consumption], large insulin doses." Over this time period, the physician recommended various dieting techniques and adjustments to oral diabetic medication as well as injected insulin levels to help control the Veteran's diabetes. There is no mention of hospitalization, specific hypoglycemic episodes, or episodes of ketoacidosis. Treatment records show that the Veteran attended appointments no more than once a month. In private treatment records dated February and March 2016, the Veteran reported that he was having hypoglycemic episodes in the middle of the night after being put on a carbohydrate-restricted diet. The private physician instructed the Veteran to have a midday snack to help avoid hypoglycemic events in the afternoon and to still limit large dinner-time meals to balance out the Veteran's blood sugar levels. At this time, neither the physician nor the Veteran reported that these events resulted in hospitalization. Records from this time show that the Veteran attended appointments no more than once a month. In a May 2016 disability benefits questionnaire, the private physician noted that the Veteran managed his diabetes with a restricted diet, oral hypoglycemic agents, and insulin injections more than once a day. He opined that the veteran required regulation of activities as part of the medical management of his diabetes, noting that the Veteran had diabetes-related peripheral vascular disease which prevented him from standing or walking for long periods. The physician noted that the Veteran visited his health care provider less than twice a month and had not been hospitalized for ketoacidosis or hypoglycemia. The examiner noted that the Veteran suffered from hypertension and peripheral vascular disease that were at least as likely as not caused by or aggravated by the diabetes mellitus. However, the physician did not provide any explanation (rationale) for his opinions. The Veteran reported that he did have hypoglycemic and hyperglycemic episodes. In a May 2016 VA examination, the examiner noted that the Veteran required an oral hypoglycemic agent as well as more than 1 injection of insulin per day to control his diabetes. The examiner noted that the Veteran did not require regulation of activities as part of his medical management of diabetes. The examiner noted that the Veteran visited his diabetic care provider less than twice a month for either hypoglycemia or ketoacidosis. The examiner noted that there were no episodes of hospitalization over the past year for either ketoacidosis or hypoglycemia. In contrast to the private physician who submitted a May 2016 disability benefits questionnaire, the VA examiner did not check the questionnaire boxes indicating that the Veteran suffered from hypertension or peripheral vascular disease. Analysis and Conclusion After reviewing the evidence of record, the Board finds that a rating in excess of 40 percent for diabetes is not warranted. While the record shows a restricted diet, regulation of activities, and oral medication and insulin to help control the Veteran's diabetes mellitus, there are no reported episodes of ketoacidosis or hypoglycemia resulting in hospitalization at all (much less more than once a year) and the Veteran does not have diabetic care provider appointments more than once a month. The private treatment records (as well as the Veteran's own correspondence) confirm that there have been no episodes of hospitalization from the Veteran's diabetes mellitus. Besides hospitalization, the diagnostic code allows for a 60 percent evaluation when the Veteran must make bimonthly visits to a diabetic care provider for episodes of hypoglycemia and ketoacidosis. While the record shows that the Veteran seeks care from a diabetic care provider, the evidence indicates that these appear to be routine appointments and generally not appointments to treat specific episodes of ketoacidosis or hypoglycemia. The Veteran did report more frequent episodes of hypoglycemia in 2016 to his diabetic care provider, but these did not result in appointments twice a month, as required for a 60 percent evaluation. Due to the successive nature of the rating criteria for diabetes (i.e., the evaluation for each higher disability rating includes the criteria of each lower disability rating), all five criteria listed for the 60 percent rating must be met before a 60 percent evaluation may be assigned. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). In this case, the Veteran's diabetes mellitus was increased to a 40 percent evaluation in August 2016. Because the record shows that the Veteran does not meet all five of the criteria required for a higher (60 percent) rating, 40 percent is the most appropriate rating for the Veteran's disability. The preponderance of the evidence is against the claim for an increased rating and, accordingly, the doctrine of equipoise does not apply. The Board notes that this decision does not leave the Veteran without recourse. If the service-connected disability should worsen in the future, the Veteran is free to file a new claim for an increased rating. However, for the Board to award additional compensation based on the mere potential for such worsening would be premature at this time. (CONTINUED ON NEXT PAGE) ORDER An increased rating in excess of 40 percent for diabetes mellitus is denied. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs