Citation Nr: 18144194 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 16-53 554 DATE: October 24, 2018 ORDER An increased disability rating of 40 percent, but no higher, for diabetes mellitus type II (diabetes) is granted, subject to the regulations and governing criteria applicable for payment of monetary benefits. FINDING OF FACT During the pendency of this appeal, the Veteran’s treatment for diabetes has consisted of insulin injections, restricted diet and regulation of activities. CONCLUSION OF LAW The criteria for an increased disability rating of 40 percent, but no higher, for diabetes have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.119, Diagnostic Code (DC) 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1969, during the Vietnam Era. 1. The issue of entitlement to an increased disability rating in excess of 20 percent for diabetes. The Veteran contends that he is entitled to an increased disability rating in excess of 20 percent for diabetes. See April 2016 Notice of Disagreement. Preliminarily, the Board notes the applicable DC is 7913 for diabetes mellitus. 38 C.F.R. § 4.119. Under DC 7913, 20 percent disability rating is warranted if it requires insulin and restricted diet or an oral hypoglycemic agent and restricted diet. A 40 percent disability rating is warranted if it requires insulin, restricted diet and regulation of activities. A 60 percent disability rating is warranted if it 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 as well as complications that would not be compensable if separately evaluated. A 100 percent disability rating is warranted if it 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 as well as either progressive loss of weight or strength or complications that would be compensable if separately evaluated. Generally, in assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms of his diabetes. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007), abrogated on other grounds by Walker v. Shinseki, 708 F.3d 1331 (2013). However, he is not competent to render a medical diagnosis or opinion on complex medical questions. See Barr, supra; Jones v. West, 12 Vet. App. 460, 465 (1999). In that regard, the Board relies primarily on the medical evidence of record. As in this instance, where an increase in the disability rating assigned is at issue, the primary concern is the Veteran’s present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994); cf. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, if factually ascertainable, the effective date assigned may be up to one year prior to the date the application for increased was received. 38 U.S.C. § 5110 (2012). Therefore, here, the relevant timeframe for consideration is from January 20, 2015 to the present. See December 2015 Application for Disability Compensation and Related Compensation Benefits (received by the VA on January 20, 2016). In furtherance of this claim, the Veteran has undergone one VA examination in February 2016. February 2016 Diabetes Mellitus VA Examination Report. At that time, the VA examiner found his treatment consisted of an oral hypoglycemia agent(s) as well as more than one insulin injection per day, but did not include the regulation of his activities. He required less than two visits to his diabetic provider for episodes of ketoacidosis or hypoglycemia and there were no hospitalizations for the same in the past 12 months. There was no evidence of progressive unintentional weight loss or loss of strength. He had diabetic peripheral neuropathy as well as erectile dysfunction, which were complications stemming from his diabetes. No other pertinent physical findings, complications, conditions, signs or symptoms were noted. In terms of functional impact on his ability to work, the VA examiner concluded there was none. A review of the Veteran’s VA treatment records reveals that in April 2016, his VA treatment provider indicated that he was on significant dietary restrictions, taking insulin after failed attempts to treat with oral hypoglycemic agents alone and had been placed on activity restrictions due to burning dysesthesia in his feet and fluctuating blood sugars. April 2016 VA Physician Note. In October 2016, the Veteran’s VA treatment provider reiterated that he was on a restricted diet and was insulin dependent. October 2016 VA Physician Note. While the VA treatment provider indicated his activities continued to be restricted, the VA treatment provider did not specifically attribute the restriction to his diabetes. Thereafter, in December 2016, a VA medical opinion was obtained to clarify whether the Veteran’s regulation of activities was due to his diabetes. December 2016 VA Medical Opinion. Upon reviewing the claims file, the VA examiner opined that his regulation of activities was most likely due to other non-service connected disabilities, to include an aortic valve replacement, cervical spine, lumbar spine and bilateral knee conditions without further explanation. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). In doing so, while the VA examiner acknowledged the VA treatment provider’s findings in October 2016, the VA examiner did not address the VA treatment provider’s findings in April 2016. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007), citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Given the foregoing, the Board accords the December 2016 VA Medical Opinion no probative value. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). More recently, in February 2017, the Veteran’s VA treatment provider indicated he has recovered well from aortic valve replacement. The VA treatment provider attributed his diminished ability to walk to his diabetic peripheral neuropathy and the neuropathic pain in his feet. Further, the VA treatment provider indicated he has been having some hypoglycemic episodes due to his insulin therapy. However, there is no further information regarding the severity or frequency of his hypoglycemic episodes. In contemplating the above, the Board finds the preponderance of the evidence supports an increased disability rating of 40 percent, but no higher, for the Veteran’s diabetes. 38 U.S.C. § 1155; 38 C.F.R. § 4.119. There is no question the Veteran’s diabetes has required treatment with insulin and a restricted diet during the pendency of this appeal. Although the February 2016 VA examiner found there was no evidence the Veteran’s activities were regulated due to his diabetes mellitus following a review of the claims file as well as his relevant VA treatment records, at least by April 2016, his VA treatment provider indicated he had been placed on activity restrictions due to burning dysesthesia in his feet and fluctuating blood sugars. His VA treatment provider has confirmed these activity restrictions have remained in place thereafter. However, there is no evidence of record establishing any activity restrictions were in place prior to January 20, 2016. While the evidence of record suggests the Veteran has experienced hypoglycemic episodes, there is no evidence of record demonstrating these episodes have resulted in any hospitalization or that it has required visits to his diabetic care provider at least twice monthly. There is no evidence of record showing any episodes of ketoacidosis. Ordinarily, the Board’s inquiry would not end here because the Board must also consider increased evaluations under other potentially applicable DCs. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The only symptoms raised by the record not encompassed under the diagnostic criteria prescribed in DC 7913 is diabetic peripheral neuropathy and erectile dysfunction. However, as he has already been awarded service connection for peripheral neuropathy of the right and left lower extremities associated with diabetes and erectile dysfunction associated with diabetes, further consideration is unnecessary. See June 2008 Rating Decision; June 2009 Rating Decision. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel