Citation Nr: 18149193 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 15-05 202 DATE: November 9, 2018 ORDER Entitlement to an initial rating of 20 percent for service-connected diabetes mellitus is granted. Entitlement to an initial rating in excess of 20 percent for service-connected diabetes mellitus is denied. FINDING OF FACT The Veteran’s diabetes requires oral hypoglycemic agent and restricted diet, but not regulation of activities. CONCLUSION OF LAW The criteria for a rating of 20 percent, but not higher, for diabetes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to November 1969. The Veteran testified before a Veterans Law Judge, who is no longer at the Board, during a May 2015 videoconference hearing; a transcript is of record. The Board informed the Veteran of his right for another optional Board hearing under 38 U.S.C. § 7107(c) and 38 C.F.R. § 20.707 in October 2017. In reply, the Veteran waived the optional hearing. The Board previously remanded the issue for further development in December 2016. The case has now been returned to the Board for appellate review. 1. An initial rating in excess of 10 percent disabling for service-connected diabetes mellitus Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s diabetes is rated under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a rating of 10 percent is assigned for diabetes manageable by restricted diet only. A rating of 20 percent 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. Note 2 to Diagnostic Code 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 Diagnostic Code 7913. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. Here, the Veteran claims that he warrants a 20 percent disability rating for his diabetes. Because of the successive nature of the rating criteria, each of the criteria listed in the 20 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). The RO assigned a 10 percent rating because management of diabetes by restricted diet is considered a standard treatment practice. See June 2014 rating decision. Hence, the dispositive issue here is whether it also requires insulin or oral hypoglycemic agent. For the reasons discussed below, the Board find that it did at the time of a May 2014 VA examination. As the Veteran stated, his VA treatment records show that he was originally prescribed with metformin, a hypoglycemic agent, and that this medication was discontinued because he had gastrointestinal reaction to it. See, e.g., June 2014 VA treatment record. After medication was discontinued, the Veteran’s diabetes has been managed by “lifestyle modification” and his treating physician indicates that his diabetes has been well controlled. Indeed, an October 2014 blood testing indicates good control of blood sugar and continuation of the current treatment was recommended; his A1C was 6.5 % (with reference range between 3.9 and 6.1%) and glucose level was 143 mg/dL (with reference range between 70 to 110 mg/dL). The rest of the medical evidence of record, including the second VA examination in December 2016, does not indicate any improvement or worsening of his diabetes. Thus, the Board concludes, resolving reasonable doubt in the Veteran’s favor, that the criteria for an initial evaluation of 20 percent for his diabetes have been met. However, the Board finds that the criteria for an evaluation in excess of 20 percent for the Veteran’s diabetes have not been met since the medical evidence demonstrates that the Veteran has no regulation of activities due to his diabetes. The definition of “regulation of activities” in the criteria for a 100 percent rating, i.e., “the avoidance of strenuous occupational and recreational activities,” applies to the “regulation of activities” criterion for a 40 percent rating under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). This requires medical evidence that occupational and recreational activities have been restricted by the diabetes. Id. (Continued on the next page)   Neither the May 2014 VA examination nor December 2016 VA examination indicates that the Veteran has regulation of activities as defined above. The treatment records do not contain any complaint of impact of his diabetes on occupational and recreational activities. The medical evidence of record also shows that the Veteran has no secondary conditions from his diabetes either. Therefore, the Board finds that the Veteran’s diabetes does not meet the criteria for a rating in excess of 20 percent. In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel