Citation Nr: 1751530 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 10-48 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for the Veteran's service-connected type II diabetes mellitus, prior to July 21, 2015. 2. Entitlement to a disability rating in excess of 40 percent for the Veteran's service-connected type II diabetes mellitus beginning July 21, 2015. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. The Veteran's disability rating for diabetes mellitus was increased from 20 to 40 percent in a February 2016 rating decision. When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the Veteran's claim for increased disability rating for diabetes mellitus remains on appeal. This matter was previously before the Board in March 2013 and July 2014 but was remanded to the Agency of Original Jurisdiction for further development. The required development has been completed and the Veteran's claim is now properly before the Board. FINDINGS OF FACT 1. Prior to July 21, 2015, the Veteran's diabetes mellitus was managed by use of an oral hypoglycemic medication, insulin, and restricted diet, and without a medical requirement of regulation of activities. 2. As of July 21, 2015 the Veteran's diabetes mellitus has been managed by use of an oral hypoglycemic medication, insulin, restricted diet, and a medical requirement of regulation of activities, and did not result in 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. CONCLUSIONS OF LAW 1. Prior to July 21, 2015, the criteria for an initial disability rating for diabetes mellitus in excess of 20 percent have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1-4.14, 4.119, Diagnostic Code 7913 (2017). 2. As of July 21, 2015, the criteria for a disability rating for diabetes mellitus in excess of 40 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duty to notify was satisfied by April 2009 and May 2015 letters. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA must make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with the claims file. All post-service treatment records identified by the Veteran have also been obtained by the VA. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations in connection with his claim. The Board finds the May 2013, July 2015, and May 2016 VA examinations are adequate as they involved an evaluation of the Veteran, a review of the Veteran's claims file, and described his diabetes mellitus in sufficient detail for the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405 (1994). The Veteran was also afforded a VA examination in June 2008, however, in a March 2013 remand, the Board determined the June 2008 examination was inadequate for rating purposes because it did not address if there was a medical requirement of regulation of the Veteran's activities due to his service-connected diabetes. In July 2014 the Veteran's claim was remanded to the AOJ for further development. Specifically, the AOJ was instructed to associate with the claims file the Veteran's VA treatment records from September 2008 to July 2014. These records have been associated with the file. Additionally, the AOJ was to inform the Veteran to complete and return an updated VA Form 21-4142, Authorization and Consent to Release Information, for any private treatment providers who treated the Veteran's diabetes. In a June 2015 correspondence, the Veteran was asked to complete and return the updated VA Form 21-4142 for each treatment provider. There has been substantial compliance with the prior remand, and adjudication of the Veteran's claim may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Increased Evaluations Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular Diagnostic Code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (a "staged rating"). Fenderson, 12 Vet. App. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial rating, the Board has considered all evidence of severity since the effective date for the award of service connection. Initial Disability Rating in Excess of 20 percent for Diabetes Mellitus Prior to July 21, 2015 In a July 2008 rating decision, the Veteran was granted service connection for diabetes and assigned an initial disability rating of 20 percent, effective March 28, 2008. Diabetes mellitus is evaluated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent disability evaluation is assigned for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. A 40 percent evaluation is contemplated for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. "Regulation of activities," is defined in Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities." Id. Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21Vet. App. 360 (2007). The enumerated criteria in Diagnostic Code 7913 for a 40 percent rating are part of a structured scheme of successive, cumulative (conjunctive) criteria for establishing a disability rating: each higher rating includes the same criteria as the lower rating plus distinct new criteria. A 40 percent rating is not assignable under Diagnostic Code 7913 if the Veteran's disability meets all of the 20 percent criteria, but only two of the three criteria at the 40 percent level. See Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013). A 60 percent evaluation applies if 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. If disability rating criteria are written in the conjunctive, "a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation," and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria. Middleton, 727 F.3d 1172. In the present case, the Veteran completed a VA diabetes mellitus examination in June 2008. The examination noted the hypertension, frequent urination, and erectile dysfunction. The Veteran was diagnosed with type 2 diabetes and moderate diabetic neuropathy. The Veteran was negative for hospital admissions, extremity ulcers, heart attack, transient ischemic attack or stroke, bladder or bowel problems, or diabetic or peripheral neuropathy. The examiner did not comment on whether the Veteran's diabetes required the regulation of activities. The Veteran completed another VA examination regarding his diabetes mellitus in May 2013. This examination involved a complete review of the Veteran's claims file and in-person examination of the Veteran. The examination noted the Veteran's diabetes was treated by insulin, oral hypoglycemic agents, and restricted diet. The Veteran's diabetes did not require regulation of activities, and had not resulted in hospitalizations over the previous 12 months. The Veteran was diagnosed with diabetes mellitus, peripheral neuropathy, diabetic retinopathy, and erectile dysfunction. The Veteran's VA treatment notes from October 2008 to July 2015 confirm treatment for diabetes mellitus with insulin, dietary restrictions, and oral hypoglycemic agents. The treatment records do not indicate that the Veteran's diabetes mellitus required regulation of activities or hospitalization. Prior to July 21, 2015, the record indicates the Veteran had a diagnosis of diabetes mellitus. The Veteran treated this disability with oral hypoglycemic agents, insulin, and dietary restrictions. The competent medical evidence indicates the Veteran did not have restrictions on his activities due to diabetes during this rating period. Again, the criteria for a higher rating under Diagnostic Code 7913 are conjunctive not disjunctive, i.e., there must be insulin treatments, restricted diet, and regulation of activities. Middleton, 727 F.3d 1172. In turn, the Veteran's disability most closely approximates a 20 percent evaluation, and a higher evaluation of 40 percent is not warranted. Disability Rating in Excess of 40 percent for Diabetes Mellitus as of July 21, 2015 The Veteran's service-connected diabetes mellitus disability rating was increased to 40 percent, effective July 21, 2015, in a February 2016 rating decision. In July 2015, the Veteran completed a VA examination regarding his diabetes mellitus. The examining clinician noted that the Veteran's diabetes was managed by restricted diet, oral hypoglycemic agents, and insulin. The clinician also noted that the Veteran required the regulation of activities as part of the medical management of his diabetes. Finally, the clinician stated that the Veteran visited his diabetic care provider less than twice per month, and that the Veteran had not experienced episodes of ketoacidosis reactions, hypoglycemic reactions, or hypoglycemia requiring hospitalization in the previous 12 months. The Veteran underwent an additional VA examination for his diabetes mellitus in May 2016. The Veteran's examination noted his diabetes was treated with restricted diet, hypoglycemic agents, and insulin. The examination further noted that the Veteran's diabetes mellitus required activities regulation. Once again, the Veteran visited his diabetic care provider less than twice per month, and the Veteran had not experienced episodes of ketoacidosis reactions, hypoglycemic reactions, or hypoglycemia requiring hospitalization in the previous 12 months. Private and VA treatment records from July 2015 to present do not indicate the Veteran has been hospitalized for of ketoacidosis or hypoglycemic reactions, or hypoglycemia in the previous 12 months. The Board acknowledges the Veteran's September 2016 correspondence contention that his hypoglycemia did not require hospitalizations only because his wife is a registered nurse that was able to treat the Veteran at home. However, the rating criteria for a 60 percent disability rating specifically require 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. At present, the probative evidence of record does not establish that the Veteran's diabetes mellitus meets the rating criteria for a 60 percent disability rating. As of July 21, 2015, the Veteran treated this disability with oral hypoglycemic agents, insulin, and dietary restrictions. The competent medical evidence indicates the Veteran did have regulation of his activities due to diabetes during this rating period. Again, the criteria for a 60 percent rating under Diagnostic Code 7913 are conjunctive not disjunctive, i.e., there must be insulin treatments, 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. Middleton, 727 F.3d 1172. In turn, the Veteran's disability most closely approximates a 40 percent evaluation, and a higher evaluation of 60 percent is not warranted. Lastly, a total disability rating based on individual unemployability (TDIU) is not for consideration because the Veteran last worked on April 6, 2014, and a TDIU was granted effective April 6, 2014. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER An initial disability rating in excess of 20 percent for the Veteran's service-connected type II diabetes mellitus prior to July 21, 2015 is denied. A disability rating in excess of 40 percent for the Veteran's service-connected type II diabetes mellitus beginning of July 21, 2015 is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs