Citation Nr: 18139997 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-27 706 DATE: October 2, 2018 ORDER Entitlement to a rating of 40 percent and no more for diabetes mellitus type I (DM I) is granted. FINDING OF FACT The Veteran experienced two episodes of hypoglycemia and controlled his DM I with the use of insulin, a restricted diet, and regulation of activities. Although he has experienced hypoglycemic reactions requiring one to two hospitalizations per year, he has not experienced complications due to his DM I. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for a rating of 40 percent and no more for DM I have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, DC 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2006 to June 2011. Entitlement to a rating in excess of 20 percent for diabetes mellitus type 1 Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s DM I has been assigned a 20 percent rating under 38 C.F.R. § 4.119, DC 7913. Under Diagnostic Code 7913, diabetes mellitus is rated at 100 percent where it 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. A rating of 60 percent is available where diabetes requires one or more daily injection of 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 rating of 40 percent is available where diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities. A rating of 20 percent is available where diabetes requires one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. Compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Analysis The Veteran contends that his DM I is more severe than the 20 percent rating depicts. The Veteran submitted a medical progress note dated November 6, 2014. He had been discharged from the Robert J. Dole VAMC Emergency Department. The Veteran was diagnosed with hypoglycemia (low blood sugar). Discharge medications and instructions stated that the Veteran should continue his current medication and cut back on night time detemir. The Board notes that a section of the record appears to have been colored with a Sharpie or a similar instrument. In November 6, 2014, the Veteran’s VA treatment record notes that the Veteran was discharged from the Robert J. Dole VAMC. The Veteran was diagnosed with hypoglycemia. He was told to continue his current medications and cut back on night time detemir. The examiner noted that there were no dietary restrictions or physical activity limitations. In February 2015, the Veteran submitted a DM I Disability Benefits Questionnaire (DBQ) by an APRN. The Advanced Practice Registered Nurse (APRN). The APRN confirmed the Veteran’s DM I diagnosis. The Veteran’s DM I was managed by restricted diet, he was prescribed insulin more than one injection per day, he had to frequently monitor his blood glucose to determine dose, and count carbohydrates. For emphasis, the DBQ affirmatively indicated that the Veteran does require regulation of activities, and specifically commented, “[h]e must monitor his blood glucose before, during, and after increased physical activity. If having blood glucose less than 70 mg/dl, he cannot participate in that type of activity until blood glucose is back above normal.” Further, the DBQ commented, “[he] may need to avoid strenuous activity depending on the current blood glucose, and last dose of insulin.” The February 2015 DBQ noted the Veteran’s most recent A1C was 8.1%. The Veteran had less than two visits per month to his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions. He had one episode of hypoglycemia requiring hospitalization over the past 12 months. He had no episodes of ketoacidosis requiring hospitalization over the past 12 months. The Veteran did not have diabetic peripheral neuropathy, diabetic neuropathy, or renal dysfunction caused by DM I, or diabetes retinopathy. He did not have erectile dysfunction, cardiac condition, hypertension, peripheral vascular disease, stroke, skin or eye conditions, or other complications that is at least as likely as not (at least 50 percent probability) due to DM. Additionally, the Veteran did not have cardiac condition(s), hypertension, renal disease, peripheral vascular disease, eye condition(s), or other permanently aggravated conditions that is at least as likely as not permanently aggravated (at least 50 percent probability) by DM. He did not have progressive unintentional weight loss; progressive loss of strength; scars; or other pertinent physical findings, complications, conditions signs and/or symptoms related to and/or attributable to his DM I. He did not have any recognized complications of DM I. The Veteran’s DM I did not impact his ability to work. In March 2015, the Veteran was afforded a VA examination to determine the severity of his DM I. The examiner confirmed the Veteran’s DM I diagnosis. The Veteran’s diabetes was managed by a restricted diet, and he was prescribed insulin more than one injection per day. The March 2015 examiner noted that the Veteran was not required regulation of activities as part of his medical management. The March 2015 VA examiner, in reviewing the Veteran’s medical history, noted he had less than two visits per month to his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions. He had one episode of hypoglycemia requiring hospitalization over the past 12 months but no episodes of ketoacidosis requiring hospitalization over the past 12 months. The Veteran did not have diabetic peripheral neuropathy, diabetic neuropathy, or renal dysfunction caused by DM, or diabetes retinopathy. He did not have erectile dysfunction, cardiac condition, hypertension, peripheral vascular disease, stroke, skin or eye conditions, or other complications that is at least as likely as not (at least 50 percent probability) due to DM. Additionally, the Veteran did not have cardiac condition(s), hypertension, renal disease, peripheral vascular disease, eye condition(s), or other permanently aggravated conditions that is at least as likely as not permanently aggravated (at least 50 percent probability) by DM. The Veteran did not have progressive unintentional weight loss; progressive loss of strength; scars; or other pertinent physical findings, complications, conditions signs and/or symptoms related to and/or attributable to his DM I. His A1C of 6.5 percent or greater on two or more occasions. Commenting on functional impact, the examiner found the Veteran’s DM I had an impact on his ability to work, based on the Veteran’s reported history. In particular, the Veteran reported that he was a police officer who wore all his gear of 50-60 pounds. He could feel his carbs get low. He was required to always carry glucose pills. He ran after suspects. It was difficult for him to check his blood sugars during the day as he worked 10-hour shifts. He was taking Novolog and Levemir insulin. In April 2015, the Veteran submitted a note from his private physician. The physician stated that he treated the Veteran’s DM I for which the Veteran had to take multiple daily injections of insulin. The examiner further stated that he advised the Veteran to avoid strenuous occupational and recreational activities that would adversely affect his blood glucose and increase the frequency of hypoglycemia episodes. The examiner noted that the Veteran has hypoglycemia unawareness and has had severe hypoglycemia requiring hospitalization in 2014. The examiner further noted that having DM I requires the individual to regulate their food intake, physical activity, and insulin doses on a daily basis to provide optimum glycemic control without increased risk of hypoglycemia and loss of consciousness. In July 2015, the Veteran was seen at the Janesville VAMC emergency room. The Veteran’s lab results were “all ok except for a slight decrease in potassium.” In September 2015, the Veteran submitted a DM DBQ. The examiner confirmed the DM I diagnosis. The Veteran’s DM I was managed by restricted diet, he was prescribed insulin more than one injection per day, and was required to adjust his insulin for increased or decreased physical activity. The examiner stated that due to a history of increased aerobic exercise resulting in severe hypoglycemic with seizure dated July 16, 2015 and November 2014, the examiner advised the Veteran to limit or avoid strenuous aerobic activity such as extended walking or running. The examiner also advised the Veteran to monitor his glucose closely before and during physical activity due to risk of severe unconscious hypoglycemic. The Veteran had less than two visits per month to his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions. He had two episodes of hypoglycemia requiring hospitalization over the past 12 months but no episodes of ketoacidosis requiring hospitalization over the past 12 months. The Veteran did not have diabetic peripheral neuropathy, diabetic neuropathy or renal dysfunction caused by DM, or diabetes retinopathy. He did not have erectile dysfunction, cardiac condition, hypertension, peripheral vascular disease, stroke, skin or eye conditions, or other complications that is at least as likely as not (at least 50 percent probability) due to DM. Additionally, the Veteran did not have cardiac condition(s), hypertension, renal disease, peripheral vascular disease, eye condition(s), or other permanently aggravated conditions that is at least as likely as not permanently aggravated (at least 50 percent probability) by DM. He did not have progressive unintentional weight loss; progressive loss of strength; scars; or other pertinent physical findings, complications, conditions signs and/or symptoms related to and/or attributable to his DM I. Additionally, he did not have any recognized complications of DM I. The Veteran’s DM I had an impact on his ability to work. The examiner stated that the Veteran’s current job as a police officer required unplanned, intense exercise at times; therefore, the Veteran was cautious about giving insulin for meals during his shift resulting in higher than goal glucose levels which risk of long term complications. Regarding the restriction of activities, the Board finds that the evidence is in equipoise as to whether the Veteran’s DM I require the restriction of activities. The Veteran’s VA treatment records note that the Veteran’s DM I does not require the restriction of activities; however, his private physicians note that the Veteran’s DM I does require the restriction of activities. The Board finds the private physicians opinions to be highly probative in support of whether the Veteran’s DM I requires the restriction of activities. Therefore, after resolving reasonable doubt in favor of the Veteran, the Board will conclude that the Veteran’s DM I requires the regulation of activities along with one or more daily injection of insulin, and a restricted diet. Although the Veteran’s DM I requires one or more daily injection of insulin, restricted diet, and regulation of activities, and he experienced hypoglycemic reactions requiring one to two hospitalizations per year, he has not experienced complications due to his DM I. As such, the Board finds that a rating of 40 percent, but no greater, is warranted for the Veteran’s Type I Diabetes Mellitus. BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel