Citation Nr: 18145476 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-23 177 DATE: October 29, 2018 ORDER The claim of entitlement to an evaluation in excess of 20 percent for diabetes mellitus type II is denied. REMANDED The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s diabetes mellitus type II did not require regulation of activities as ordered by a physician. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 20 percent for diabetes mellitus type II have not been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344; Diagnostic Code 7913 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from October 1967 to November 1971. 1. The claim of entitlement to an evaluation in excess of 20 percent for diabetes mellitus type II The Veteran contends that he is entitled to an evaluation in excess of 20 percent for diabetes mellitus type II (hereinafter, “diabetes”). Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. 38 C.F.R. § 4.10. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. After a thorough review of the medical and lay evidence of record, the Board finds that an evaluation in excess of 20 percent for diabetes is not warranted. Diabetes is rated under 38 C.F.R. § 4.119, Diagnostic Code 7913. Pursuant to Diagnostic Code 7913, a 20 percent rating is warranted where the diabetes requires insulin and a restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes requiring 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 for diabetes requiring 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, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Within the criteria for a 100 percent rating, “regulation of activities” is defined as “avoidance of strenuous occupational and recreational activities.” This definition also applies to the “regulation of activities” criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction “and” is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). The Board notes that the Veteran’s diabetic neuropathy is separately service-connected and evaluated. In a July 2012 VA examination, the examiner noted that the Veteran’s diabetes was treated with insulin with more than one injection per day. There were no reported instances of bed rest prescribed by a physician due to his diabetes. There was also no reported effect on his activities of daily living, and the diagnosis presented no functional limitations. The Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than twice per month. There were no hospitalizations in the previous year for ketoacidosis or hypoglycemia. The Veteran did not report unintentional weight loss or progressive loss of strength due to diabetes. In October 2014, VA treatment records reflect that the Veteran was encouraged to engage in regular activity on a daily basis in order to address his weight issues. In May 2015, the Veteran underwent another VA examination to address the severity of his diabetes. The examiner noted that the Veteran needed to take injections of insulin more than once per day. The Veteran did not require a regulation of activities as a part of medical management of his diabetes. The Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than twice per month. There were no hospitalizations in the previous year for ketoacidosis or hypoglycemia. The Veteran did not report unintentional weight loss or progressive loss of strength due to diabetes. The examiner did not find a functional impact associated with his diabetes. In sum, the preponderance of the evidence of record reflects that the Veteran’s diabetes was treated with medication, including insulin injections more than once per day, but he was not instructed to restrict his activities due to his diabetes mellitus. While the Veteran may believe that he is entitled to an increased evaluation for diabetes, the record does not support a 40 percent evaluation. The Veteran is competent to provide testimony to establish the occurrence of medical symptoms, but he is not medically qualified to prove a matter requiring medical expertise. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). There is no evidence in medical records indicating that a doctor prescribed restricted activities due to his diabetes. Any self-limitation of activities imposed by the Veteran is not the same as doctor-ordered regulation. As such, the Board considers the medical evidence of record both credible and highly probative in determining the severity of the Veteran’s diabetes and how those treatments apply to the rating schedule. The Board finds that the probative weight of the competent evidence of record weighs against an evaluation in excess of 20 percent for the Veteran’s diabetes. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to an evaluation in excess of 20 percent for diabetes must be denied. REASONS FOR REMAND 1. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Board cannot make a fully informed decision regarding entitlement to TDIU as the medical evidence of record is insufficient regarding the functional impairments of the Veteran’s service-connected disabilities. In the Veteran’s May 2015 VA examination, the examiner stated that moderate posttraumatic stress disorder (PTSD) does not preclude gainful employment, but provides no elaboration of this rationale. The examiner notes that the Veteran suffers from symptoms including: depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Such symptoms tend to impact relationships in the workplace, particularly difficulties establishing and maintaining relationships in the workplace. Unfortunately, no rationale is provided for the examiner’s conclusion. Additionally, the Veteran reported in his August 2012 VA examination that he did not get along with others and frequently lost his temper. As such, a more thorough explanation regarding the functional impairment, if any, attributable to the Veteran’s PTSD is necessary on remand. Furthermore, the most recent VA examination addressing the Veteran’s diabetic neuropathy is contradictory to VA treatment records associated with the claims file. In a July 2012 VA examination, the examiner diagnosed the Veteran with diabetic neuropathy that affected the Veteran’s bilateral lower extremities. In April 2015, VA treatment records noted that his neuropathic foot pain was increasing with activity. In May 2015, VA treatment records noted that this pain was worsening, causing increased anxiety and fatigue. However, in the May 2015 VA examination, the examiner, while noting the previous diagnosis of diabetic neuropathy, reported that the Veteran did not have lower extremity diabetic peripheral neuropathy. No explanation is provided, nor does the functional impact statement appear to account for the Veteran’s lay reports of increasing difficulty with activities due to his diabetic foot pain. Accordingly, a new examination is necessary on remand in order to clarify the overall functional impairment of the Veteran’s diabetic neuropathy. The matter is REMANDED for the following action: 1. Contact the Veteran and his representative in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and his representative, and afford an opportunity for him to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. After the aforementioned evidentiary development is complete, obtain an addendum opinion regarding the functional impairment attributable to the Veteran’s PTSD. A complete copy of the claims file must be made available to the examiner. The examiner must consider the Veteran’s lay reports of symptomatology as discussed in VA treatment records. After a thorough review of the medical and lay evidence of record, the examiner should discuss the following: (a.) An assessment of any and all occupational impairment caused by the Veteran’s PTSD since April 2015. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. After the aforementioned evidentiary development is complete, obtain an addendum opinion regarding the functional impairment attributable to the Veteran’s diabetic neuropathy. A new examination may be obtained, if the examiner deems it necessary. A complete copy of the claims file must be made available to the examiner. The examiner must consider the Veteran’s lay reports of symptomatology as discussed in VA treatment records. After a thorough review of the medical and lay evidence of record, the examiner should discuss the following: (a.) An assessment of any and all occupational impairment caused by the Veteran’s diabetic neuropathy since April 2015. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel