Citation Nr: 1727554 Decision Date: 07/14/17 Archive Date: 07/25/17 DOCKET NO. 05-24 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for type II diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In a December 2010 decision, the Board denied the Veteran's claim. He appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and in a February 2012 Order, the Court granted a Joint Motion for Remand (JMR), setting aside the Board's decision and remanding the Veteran's claim. In September 2012, the Board remanded the Veteran's claim for additional development consistent with the terms of the JMR. The case is now again before the Board for further appellate action. FINDING OF FACT The Veteran's service-connected type II diabetes mellitus has required insulin and a restricted diet; it has not required regulation of activities (avoidance of strenuous occupational and recreational activities). CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that the Veteran's service treatment records (STRs), VA treatment records, and private treatment records have been obtained, to the extent they have been identified by the Veteran. The Veteran has also been afforded appropriate VA examinations in relation to his claim. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to further substantiate his claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2016). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 3.321(a), 4.1 (2016). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background and Analysis The Board notes at the outset that in accordance with 38 C.F.R. §§ 4.1, 4.2 (2016) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. The Veteran's service-connected type II diabetes mellitus is rated under DC 7913. Under DC 7913, a 20 percent rating is warranted where diabetes mellitus requires insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet. A 40 percent rating is warranted where diabetes mellitus requires insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted where diabetes mellitus requires insulin, a 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 where diabetes mellitus 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 a progressive loss of weight and strength or complications which would be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913 (2016). 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). Pursuant to Note (1), noncompensable complications are considered part of the diabetic process under DC 7913. In this regard, the Board notes the Veteran is separately service-connected for bilateral upper and lower extremity peripheral neuropathy, hypertension, and erectile dysfunction, which have all been determined to be related to his diabetes. However, the ratings assigned for those disabilities are not at issue in this appeal. Regulation of activities is defined as the "avoidance of strenuous occupational and recreational activities." 38 C.F.R. § 4.119, DC 7913. The Court has held that medical evidence is required to support a finding that diabetes requires regulation of activities. See Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The Veteran was afforded a VA examination in January 2003. The examiner noted the Veteran had never been hospitalized for ketoacidosis or hypoglycemia. With regard to restriction of activities, the examiner stated the Veteran continued to work as a heavy equipment operator and "did have any restriction of his activities." At this juncture the Board notes that in its December 2010 decision, it determined that when read in context, the examiner's statement merely reflected a typographical error in failing to state that the Veteran did not have any restriction of his activities. The examiner added that the Veteran did not have any real dysfunction at the time of the examination. At a November 2003 diabetic management consultation, the Veteran was advised of the importance of exercising thirty to forty minutes daily, preferably by walking one or two miles. Adherence to a diabetic diet was also stressed. In a December 2003 statement, the Veteran asserted he was entitled to a rating higher than 20 percent for his diabetes because he was on insulin and a restricted diet and had been told to exercise. In a July 2005 statement, the Veteran asserted his diabetes had started to affect his work in that he was unable to sit for eight hours, as his job required. He stated he had to get up and move around, which his employer did not want. The Veteran expanded on this contention at a July 2005 VA peripheral nerves examination, at which time he reported he had intermittent burning pain in both feet, with constant numbness and soreness. He stated his foot numbness caused him to have to get up and move around frequently, and had caused some problems working the foot pedals at work. The examiner diagnosed bilateral lower extremity peripheral neuropathy secondary to the Veteran's diabetes. The Veteran was afforded an additional VA examination in September 2009. The examiner noted the Veteran's diabetes was treated with insulin more than once daily. He noted the Veteran had no history of hospitalization or episodes of hypoglycemia reaction or ketoacidosis. The examiner indicated the Veteran had been instructed to follow a restricted or special diet but that he was not restricted in his ability to perform strenuous activities. The examiner noted the Veteran had retired in 2006 because he was no longer able to do the job he used to do. In an October 2009 statement, the Veteran asserted he had no feeling in his feet except when he had a sharp pain. He further asserted he had no feeling on the outside of either hand. In an April 2011 correspondence to his senator, the Veteran stated he took early retirement because he could no longer do his job as a heavy equipment operator. He attributed this decision to having lost feeling in his feet and the possibility of injuring people as a result. The Veteran was afforded an additional VA examination in June 2011. The examiner noted the Veteran had no history of hospitalization or ketoacidosis, and did not have hypoglycemic episodes. The examiner further stated the Veteran did not have to restrict his activity on account of diabetes. The examiner noted the Veteran complained of generalized fatigue and poor strength, which limited his exertional abilities, but noted the Veteran was very vague and was unable to describe his fatigue well. The examiner further noted the Veteran's reports that he stumbled easily and bumped into things secondary to his bilateral lower extremity paresthesia and that he had decreased grip strength and dropped things easily due to paresthesia in his hands. The examiner also noted the Veteran had retired early at the age of sixty-two from heavy equipment operations in part because poor general strength and paresthesia in his feet had interfered with him performing his job adequately and safely. The examiner stated that otherwise, the Veteran completed his daily activities independently. In a June 2011 buddy statement, S.B. asserted she had seen the Veteran try to do simple tasks such as mowing the yard and hoeing the garden, but that he did not appear to have any energy. She stated the Veteran used to walk a mile or so daily but now did not have the energy. She further stated the Veteran seemed to be moody, short-tempered, and did not appear to enjoy life the way he used to. The Veteran was afforded an additional VA examination in July 2014. The examiner indicated the Veteran's diabetes treatment included management by restricted diet, prescribed oral hypoglycemic agents, and more than one injection of insulin per day. However, the examiner indicated the Veteran did not require regulation of activities as part of the medical management of his diabetes. The examiner further indicated the Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemia less than two times per month and had no hospitalizations for episodes of ketoacidosis or hypoglycemic reactions over the prior twelve months. The examiner noted the Veteran's reports that he tired more easily and his blood sugar fluctuated with physical work, and stated that although there were no specific aspects of the Veteran's diabetic condition that would interfere with work activities, in the examiner's opinion, the Veteran would be more suited to less physically demanding work due to stamina and the effects of vigorous physical labor on blood sugar levels. In a September 2014 letter from the Business Manager of the Veteran's former union, the Business Manager stated that the Veteran suffered from chronic diabetes and various health problems, and that prior to leaving the workforce he had two minor accidents. The author stated the Veteran became delirious and blacked out due to his severe medical conditions, and that he no longer had the ability to work. Upon a review of the foregoing, the Board finds the RO's assignment of a 20 percent initial rating for the Veteran's type II diabetes mellitus is supported by the medical evidence of record, which shows the Veteran's diabetes has required insulin and a restricted diet. However, as explained below, the Board has determined the Veteran's diabetes has not required regulation of activities within the meaning of 38 C.F.R. § 4.119, DC 7913, at any time during the period of the claim. The Board first notes the Veteran's December 2003 contention that instructions by his physicians to regularly exercise warrant a 40 percent rating under DC 7913. The Board finds this argument to be without merit, as a prescription for exercise amounts to the opposite of regulation of activities, defined by DC 7913 as the avoidance of strenuous occupational and recreational activities. The Board next notes that the evidence discussed above shows the Veteran has attributed his inability to continue working, as well as his loss of balance and grip strength, to his service-connected bilateral upper and lower extremity peripheral neuropathy. However, as indicated above, Note (1) to DC 7913 provides that complications of diabetes are to be separately rated unless they are part of the criteria used to support a 100 percent evaluation. In this case, the Veteran's neuropathy symptoms could not be used to support a 100 percent rating since there is no evidence of hospitalizations due to episodes of ketoacidosis or hypoglycemic reactions or of weekly visits to a diabetic care provider. In addition, the Board notes that 38 C.F.R. § 4.14, entitled "Avoidance of pyramiding," provides that the evaluation of the same disability under various diagnoses is to be avoided, and that the use of the same manifestations of a disease under different diagnoses is to be avoided. Accordingly, the Board's current decision must assess only the symptoms of the Veteran's underlying diabetes under DC 7913, and not the symptoms caused by his separately service-connected diabetic complications. In this regard, the Board notes that upon a review of the foregoing, and of the entire record, there is no medical evidence indicating the Veteran's diabetes requires regulation of activities. The Board specifically notes that VA examiners in September 2009, June 2011, and July 2014 all determined the Veteran's diabetes management did not require regulation of activities. In addition, a review of the Veteran's VA treatment notes shows he has been encouraged to exercise throughout the period of the claim, as recently as 2016. The Board acknowledges that the July 2014 VA examiner opined the Veteran would be more suited to less physically demanding work due to stamina and the effects of vigorous physical labor on blood sugar levels. However, this statement was accompanied by a clear finding by the examiner that the Veteran did not require regulation of activities as part of the medical management of his diabetes. In addition, the examiner made no particular finding with regard to a need to avoid strenuous recreational activities. With regard to the June 2011 statement by S.B., and the September 2014 letter by the Veteran's former union, the Board reiterates that a finding that diabetes requires regulation of activities must be supported by medical evidence. See Camacho v. Nicholson, 21 Vet. App. at 364 (finding an employer's letter to the effect that the claimant's insulin dependence disqualified him from driving a work vehicle did not constitute medical evidence, and thus was insufficient to support a 40 percent rating for diabetes mellitus). As such, the Board may not credit the September 2014 letter above the VA medical opinions of record. The Board further notes that the Veteran retired in 2006, and thus, the September 2014 letter referenced diabetic symptoms, if any, which predated the expert medical opinions by VA examiners discussed above. In summary, the Board has determined that the medical evidence fails to show the Veteran's type II diabetes mellitus requires regulation of activities as contemplated by 38 C.F.R. § 4.119, DC 7913. As each rating under DC 7913 higher than 20 percent requires such a showing, the Board finds an initial rating higher than 20 percent is not warranted. In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine, but has determined a preponderance of the evidence weighs against the Veteran's claim. As such, the doctrine is inapplicable and the claim must be denied. ORDER Entitlement to an initial rating in excess of 20 percent for type II diabetes mellitus is denied. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs