Citation Nr: 18143557 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-35 386A DATE: October 19, 2018 ORDER A 40 percent rating for diabetes mellitus is granted. FINDING OF FACT The Veteran’s diabetes mellitus is managed by insulin, restricted diet and regulation of activities. CONCLUSION OF LAW The criteria for assignment of a 40 percent rating for diabetes mellitus have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1986 to September 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by RO. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12Vet. App 119 (1999). 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. See 38 C.F.R. § 4.7. The rating for the Veteran’s diabetes has been assigned pursuant to diagnostic code (DC) 7913. A 20 percent rating is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the diabetes 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. A 100 percent rating is warranted when the diabetes 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. Under this code provision, the “regulation of activities” means “avoiding strenuous occupational and recreational activities.” Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Note 1 to DC 7913 provides that compensable complications of diabetes are to be separately evaluated unless they are part of the criteria used to support a 100 percent rating, and that noncompensable complications are considered part of the diabetic process under DC 7913. A January 2014 hospital admission discharge summary documents that the Veteran’s activity was limited to what he could tolerate. He was instructed to adhere to a strict diabetic diet with ADA calorie intake not to exceed 1,800 kilocalories per day. Additionally, his sodium intake was to be limited to no more than 2 grams per day. Additionally, he required insulin and other oral hypoglycemic medication for control of his diabetes. A December 2014 Report of VA diabetes mellitus examination reflects that the Veteran’s diabetes mellitus was controlled by restricted diet, oral hypoglycemic agents and insulin. The examiner indicated that the Veteran did not require regulation of activities as part of medical management of his diabetes mellitus. He visited his diabetic care provider less than 2 times per month for episodes of ketoacidosis or hypoglycemic reactions. He had experienced zero episodes of ketoacidosis and hypoglycemia requiring hospitalization over the past year. He had not experienced progressive, unintentional weight loss attributable to diabetes mellitus. The Veteran had none of the recognized complications of diabetes mellitus and had no other condition that was at least as likely as not due to diabetes mellitus. A January 2015 statement from the Veteran’s treating physician documents that the Veteran’s diabetes mellitus is controlled with insulin and other diabetic medication. The physician also reported that the Veteran was on a restricted diet (1000 calorie ADA diet) and a regulated graded physical activity regimen for control of his diabetes. The evidence demonstrates that the Veteran’s diabetes mellitus requires insulin, restricted diet and regulation of physical activity for control. Viewed in a light most favorable to the Veteran, a 40 percent rating is assigned for the entire period of the appeal (i.e., since February 2014). He has experienced zero episodes of ketoacidosis or hypoglycemia requiring hospitalization over the past year and has none of the recognized complications of diabetes mellitus. Thus, a rating in excess of 40 percent is not warranted. 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, 369-70 (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). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Jackson, Counsel