Citation Nr: 18139559 Decision Date: 10/01/18 Archive Date: 09/28/18 DOCKET NO. 16-42 761 DATE: October 1, 2018 ORDER Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II, is denied. FINDINGS OF FACT The Veteran’s diabetes mellitus, type II, did not require insulin injections during the appeal period. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.10, 4.119, Diagnostic Code 7913, 20.704 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from January 1966 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for diabetes mellitus, type II, effective May 11, 2011. According to the most recent codesheet, the assigned disability rating was 20 percent for diabetes mellitus, type II, under Diagnostic Code (DC) 7913. The Veteran timely filed a notice of disagreement (NOD) with the rating decision in January 2013. A statement of the case (SOC) was issued in October 2013, and the Veteran perfected his appeal in December 2013. The Veteran requested a Board hearing before a Veterans Law Judge in his December 2013 Form 9 concerning his disagreement with the rating assigned for his diabetes mellitus, type II. He initially requested to have a hearing at his local VA office, but in October 2015, he changed that request to a hearing by live videoconference. The Veteran was scheduled for a January 2017 Board hearing, and he was informed of that hearing in a November 2016 notification letter. The Veteran failed to report for that hearing, and as of this decision, he has not requested to reschedule that hearing or shown good cause for failing to report to his previously-scheduled Board hearing. Accordingly, the Board deems the Veteran’s hearing request withdrawn at this time and will proceed with adjudication of his claim. See 38 C.F.R. § 20.704(d). Disability Rating The Veteran contends that he is entitled to an initial rating in excess of 20 percent for his diabetes mellitus, type II. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Under DC 7913 for diabetes mellitus, a 20 percent evaluation is warranted when the veteran requires one or more injections of insulin and restricted diet or, alternatively, when the Veteran requires an oral hypoglycemic agent and restricted diet. 38 C.F.R. § 4.119, DC 7913. Here, the Veteran has been prescribed oral hypoglycemic agents – specifically, metformin and glimepiride – and he has been placed on a restricted diet. A 40 percent evaluation for diabetes mellitus is warranted when the veteran requires one or more daily injection of insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, DC 7913. A 60 percent evaluation for diabetes mellitus is warranted when the veteran 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 100 percent evaluation for diabetes mellitus is warranted when the veteran requires more than one daily injection of insulin, restricted diet, and regulation 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. Id. Under DC 7913 for diabetes mellitus, the criteria for any rating in excess of 20 percent requires insulin injections and regulation of activities. 38 C.F.R. § 4.119, DC 7913. This is so for the 40, 60, and 100 percent evaluations under DC 7913. Id. The United States Court of Appeals for Veterans Claims has held that all the criteria in the 40 percent rating must be met, given the conjunctive structure of the language used in DC 7913. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). In DC 7913, the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). Here, the record does not show that the Veteran has ever taken or been prescribed insulin injections. The Veteran did not indicate that he has ever used insulin injections; and no medical examination, service record, or other evidence of record shows that the Veteran has ever taken or been prescribed insulin injections. Thus, the Veteran in the present appeal does not qualify for the 40, 60, or 100 percent evaluations under the relevant diagnostic code for diabetes mellitus. See 38 C.F.R. § 4.119, DC 7913. The Board acknowledges the Veteran’s statement in his notice of disagreement (NOD) that his physician was considering placing him on insulin injections. However, consideration of possible treatment in the future is not the same as evidence of current actual prescription or treatment. The Schedule for Rating Disabilities looks at a veteran’s actual treatment during the time of the appeal, and there is no evidence of record in this appeal indicating that the Veteran is currently taking or has ever taken or been prescribed insulin injections to regulate his diabetes mellitus, type II. The Board acknowledges the Veteran’s statements that he is required to regulate or limit his activities. A February 2012 medical examination noted that the Veteran has diabetes mellitus, type II, and that the Veteran required regulation of his activities, specifically limited walking, standing, or exertional activity. However, the examiner noted the Veteran’s regulation of activities is also due to his diabetic neuropathy, which is service connected separate from the diabetes mellitus and not part of the current appeal. The Veteran as a lay person is competent to give evidence where he has knowledge of facts or circumstances and where he conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). For example, the Veteran as a lay person is competent to speak to the symptoms and treatment he is experiencing or undergoing. However, the extent to which the Veteran’s prescribed regulation of activities is due specifically to the diabetes mellitus and not to the diabetic neuropathy is a medical determination, which the Veteran as a lay person is not qualified to determine. See 38 C.F.R. § 3.159(a)(2). The Veteran lacks the adequate medical expertise in this case to render a medical opinion as to the nature of his diagnosed disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Jones v. West, 12 Vet. App. 383, 385 (1999). Furthermore, the VA examiner at the Veteran’s March 2013 VA examination determined that the Veteran did not require regulation of his activities as part of medical management of his diabetes mellitus. When examining the Veteran for diabetic sensory-motor peripheral neuropathy, the VA examiner noted that the Veteran’s diabetic neuropathy impacts his ability to work in that prolonged standing and walking are impaired. Since both the March 2013 VA examiner and the examiner from the February 2012 examination connected the Veteran’s restricted activities in standing and walking to his diabetic neuropathy, the preponderance of the evidence indicates that the Veteran’s restricted activities are related to his diabetic neuropathy, not his diabetes mellitus. The Board finds the March 2013 VA examination to be the most probative evidence of record concerning whether the Veteran’s diabetes mellitus, type II, requires insulin injections or regulation of activities. The examiner’s evaluation is based on consideration of the Veteran’s entire claims file, including the Veteran’s reported history and private medical records. Thus, the Board is satisfied that the VA examiner’s evaluation is competent, credible, persuasive, and probative for deciding this appeal. Even if the Veteran’s restricted activities are related to his diabetes mellitus, there is still no evidence of record showing that the Veteran has ever taken or been prescribed insulin injections. As discussed earlier, under DC 7913 for diabetes mellitus, all the criteria in the 40 percent disability rating, including insulin injections, must be met in order to qualify for any rating in excess of 20 percent. See 38 C.F.R. § 4.119, DC 7913; Camacho, 21 Vet. App. at 366; Tatum, 23 Vet. App. at 155-56. The Board also acknowledges the Veteran’s statements that he is required to take a blood sugar test three times a day to monitor his diabetes. However, the blood sugar test is not among the rating criteria of the diagnostic code for diabetes mellitus. 38 C.F.R. § 4.119, DC 7913. Finally, the Board acknowledges that, in the Veteran’s July 2018 Informal Hearing Presentation (IHP), the Veteran stated, through his representative, that his disability has continued to worsen in severity since his last examination and that this is no longer accurately reflected by his disability percentage. The Veteran’s representative contends that the last examination was not adequately reflective of the disability’s severity and the aggravation it has on the Veteran’s other disabilities. However, this statement does not specify how the Veteran’s disability has worsened but is rather a general statement. Without evidence of record supporting the assertion that the Veteran’s disability has worsened or showing how it has worsened, this statement does not change the fact that the Veteran is not shown to have ever taken or been prescribed insulin injections, as required under DC 7913 for all ratings for diabetes mellitus in excess of 20 percent. 38 C.F.R. § 4.119, DC 7913. In sum, the preponderance of evidence is against the assignment of a rating in excess of 20 percent for the Veteran’s diabetes mellitus, type II. The Veteran’s diabetes mellitus, type II, has been treated with oral hypoglycemic medication and a diabetic diet throughout the pendency of this appeal. When this is applied to the rating criteria for diabetes mellitus in the relevant Diagnostic Code, it is consistent with the current 20 percent rating. 38 C.F.R. § 4.119, DC 7913. The record does not show any prescription or use of insulin injections, as is required for a higher rating evaluation for diabetes mellitus. Id. Therefore, the Veteran’s claim of entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II, must be denied. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. (Continued on the next page)   The Board notes that the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dawn A. Leung, Associate Counsel