Citation Nr: 18148565 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-46 294 DATE: November 7, 2018 ORDER Entitlement to an increased initial disability rating in excess of 20 percent for service-connected diabetes mellitus type II is denied. FINDING OF FACT For the entire rating period, the management of the Veteran’s diabetes mellitus type II required the use of insulin, a restricted diet and exercise. The requirement of regulation of activity and or hospitalizations have not been shown. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for type II diabetes mellitus are not met or approximated for any period on appeal. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 1968 to August 1970 and March 1971 to March 1975 with additional periods in the Army Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an increased initial rating in excess of 20 percent for service-connected diabetes mellitus type II. Disability ratings 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. In determining the disability rating, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran’s condition. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. 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. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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). Service connection for diabetes mellitus type II as associated with herbicide exposure with a 20 percent rating effective from November 23, 2015, was established in an February 2016 rating decision. The Veteran contends that an increased rating in excess of 20 percent for diabetes mellitus type II is warranted because management of diabetes mellitus requires daily insulin shots. For the entire rating period on appeal, the Veteran’s diabetes mellitus type II has been rated at 20 percent under the criteria at 38 C.F.R. § 4.118, DC 7913. Under DC 7913, diabetes mellitus which is manageable by restricted diet only is rated at 10 percent. Diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet, is rated at 20 percent. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) is rated at 40 percent. 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 rated, is rated at 60 percent. Diabetes mellitus 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 rated, is rated at 100 percent. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that management of diabetes mellitus type II requires a regulation of activities as required for a 40 percent rating under DC 7913. Throughout the rating period on appeal, management of diabetes mellitus type II required the use of insulin (injections increased from once a day to three times a day) or an oral hypoglycemic agent, and a restricted diet, which is consistent with the 20 percent rating criteria under DC 7913. The Veteran does not contend, and the evidence does not otherwise indicate, that management of diabetes mellitus type II also required avoidance of strenuous occupational and recreational activities, which is the additional criterion necessary for the next higher 40 percent schedular rating. 38 C.F.R. § 4.118, DC 7913; see also Camacho v. Nicholson, 21 Vet. App. 360 (2007) (holding that the criteria for rating diabetes mellitus are conjunctive, and that each element of the criteria is needed to meet the requirements for the specified evaluation). In fact, at the January 2016 VA examination, the examiner reported that the Veteran does not require regulation of activities as part of the medical management of his diabetes mellitus. Although the Veteran reported in the January 2016 VA examination that his diabetes mellitus condition makes it difficult for him to perform arduous physical activities, to meet the criteria for a 40 percent disability rating, the condition must make it medically necessary to avoid strenuous occupational and recreational activities. Physical activity that becomes arduous, without being medically prohibited, does not meet the criteria of a 40 percent disability rating. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). Moreover, the medical evidence throughout the period on appeal shows that the Veteran was noted to have been instructed to increase his level of physical activity as opposed to avoid strenuous occupation and recreational activities. For example, in February 2016, the Veteran was advised to increase the amount he walks daily to achieve his goal of 30 minutes of cardio five times per day; in April 2018,, the Veteran was advised to alternate rest periods with activities and to pace his activities in order to avoid getting tired; in May 2018, the Veteran was educated on the importance of weight management through diet, portions and exercise; and in June 2018, the Veteran was advised to adhere to the prescribed plan of diet, medication and exercise. The medical reports reflect that one of the Veteran’s primary issues with managing his diabetes mellitus is non-compliance with medications and lack of exercise. The Veteran has also not reported that his condition has worsened since he filed his claim in November 2015. On the contrary, in January 2018, the Veteran stated that although he was not getting any better, he was not getting any worse. Although the record reflects that the veteran is required to take daily insulin injections and that he is on a restricted diet, the record does not show that his activities are restricted. For this reason, the weight of the evidence is against a finding that a rating in excess of 20 percent under DC 7913 for diabetes mellitus is warranted for any period. 38 C.F.R. §§ 4.3, 4.7. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. White, Associate Counsel