Citation Nr: 18146710 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 17-37 524 DATE: November 1, 2018 ORDER A rating in excess of 20 percent for diabetes mellitus with erectile dysfunction is denied. FINDING OF FACT During the appeal, diabetes mellitus has not required regulation of activities. CONCLUSION OF LAW The criteria for rating in excess of 20 percent for diabetes mellitus with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION Increased Ratings Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. A disability may require re evaluation in accordance with changes in a Veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Entitlement to rating in excess of 20 percent for diabetes mellitus with erectile dysfunction. The Veteran contends that his diabetes mellitus warrants a rating higher than 20 percent because he requires insulin and other medication along with regulation of activities to control the disability. See VA Form 9 (June 2017). The Board concludes that the preponderance of the evidence is against a rating in excess of 20 percent for diabetes mellitus. The evidence does not more nearly reflect the criteria for a higher rating. 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet; or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes mellitus 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 mellitus requiring 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. According to Note (1) to Diagnostic Code 7913, compensable complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent evaluation, while noncompensable complications are considered part of the diabetic process. To warrant a higher rating for diabetes mellitus, under Diagnostic Code 7913, the 40 percent criteria are conjunctive not disjunctive (i.e., there must be insulin dependence and restricted diet and regulation of activities). See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). “Regulation of activities” is defined by Diagnostic Code 7913 as the “avoidance of strenuous occupational and recreational activities.” Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for diabetes mellitus. The medical evidence does not establish that regulation of activities is required for the Veteran’s diabetes and, therefore, his symptoms do not more nearly reflect the criteria for the next higher rating. 38 C.F.R. § 4.7. A review of the medical records dated during this appeal show no indication that a medical professional advised the Veteran to regulate his activities to control his diabetes. A May 2017 VA medical record indicates that the Veteran is very physically active, playing golf six days a week, three to four hours per day. An April 2016 VA examination report reflects that the Veteran does not require regulation of activities as part of diabetes mellitus management. Also, it was noted that the Veteran visited his diabetic care provider less than 2 times a month for ketoacidosis/hypoglycemic reactions; and that he had no episodes of ketoacidosis/hypoglycemic reactions requiring hospitalization in the past 12 months. The examiner stated that diabetes did not impact the Veteran’s ability to work. To the extent that the Veteran reports regulation of activities, the Board finds that this is incongruous with the physically active lifestyle reported by him during VA treatment. The Board assigns greater probative value to the medical evidence as it was prepared by skilled, neutral medical professionals with knowledge of the disease process and the Veteran’s disability. The medical evidence does not show regulation of activities is required for treatment of diabetes mellitus. The Board has considered whether a separate evaluation is warranted for any other associated disorder. Complications of diabetes include peripheral neuropathy and erectile dysfunction (ED). Peripheral neuropathy is separately evaluated and not on appeal at this time. With regard to ED, the record shows that there are no separately disabling effects to rate under the VA rating schedule. It is noted that the Veteran has been awarded special monthly compensation for loss of use of a creative organ, to compensate for the effects of his ED. The Veteran does not contend nor does the record shows the presence of any other compensably disabling condition associated with diabetes mellitus type II; as such, a separate disability evaluation is not warranted for any other condition. Because the disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). The weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. Skow Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel