Citation Nr: 18149817 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 15-07 177 DATE: November 14, 2018 ORDER An initial evaluation in excess of 20 percent for type II diabetes mellitus is denied. An initial evaluation in excess of 60 percent for chronic kidney disease associated with diabetes mellitus prior to November 4, 2016 is denied. Separate compensable ratings for diabetic peripheral neuropathy of the bilateral lower extremities are granted. VETERAN’S CONTENTIONS The Veteran contends that a higher rating is warranted for his type II diabetes mellitus. See October 2018 Appellant’s Post-Remand Brief; August 2017 Appellant’s Brief. Specifically, he asserts that a higher rating is warranted because he requires an oral hypoglycemic agent and insulin injections. See January 2014 notice of disagreement. The Veteran also contends that the last VA diabetes mellitus examination in January 2015 is too old to adequately evaluate the disability. See October 2018 Appellant’s Post-Remand Brief. FINDINGS OF FACT 1. Throughout the claim period, the Veteran’s diabetes mellitus has not required regulation of activities. 2. Prior to November 4, 2016, the Veteran’s renal dysfunction was not manifested by constant albuminuria; creatinine greater than 4 mg%; generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion; and the Veteran has not required regular dialysis. 3. The Veteran has a diagnosis of diabetic peripheral neuropathy of the bilateral lower extremities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for type II diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. 2. Prior to November 4, 2016, the criteria for a rating in excess of 60 percent for chronic kidney disease as associated with diabetes mellitus were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code (DC) 7530. 3. The criteria for separate compensable ratings for diabetic peripheral neuropathy of the bilateral lower extremities are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1962 to January 1965, from March 1965 to February 1971, and from February 1976 to February 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This case was previously before the Board in September 2017 and remanded for additional development. Since then, the RO granted an earlier effective date of January 25, 2012 for service connection for chronic kidney disease, and increased the Veteran’s rating for chronic kidney disease to 100 percent effective November 4, 2016. 1. Diabetes Mellitus The Veteran’s type two diabetes mellitus is currently rated as 20 percent disabling under DC 7913. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 7913, a 20 percent disability rating is assigned for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. A 40 percent disability rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent disability rating is contemplated when diabetes mellitus requires insulin, a 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 disability rating is warranted if diabetes mellitus requires more than one daily injection of insulin, a 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. Note (1) under Diagnostic Code 7913 also indicates that compensable complications of diabetes mellitus are to be evaluated separately unless they are used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. DC 7913 defines “regulation of activities” as avoidance of strenuous occupational and recreational activities. Medical evidence is required to show that such avoidance is medically necessary. Camacho v. Nicholson, 21 Vet. App. 360, 361, 364 (2007). A January 2015 report of VA examination shows that the Veteran’s diabetes is managed by restricted diet, prescribed oral hypoglycemic agents, and an insulin injection once per day. The examiner specifically noted that the Veteran did not require regulation of activities as part of medical management for his diabetes. The remainder of the medical evidence of record does not otherwise show that the Veteran’s type II diabetes mellitus required the regulation of activities at any point throughout the claim period. See VA treatment records; Naval Medical Center Portsmouth records; Fresnius Medical Care; medical evidence from Spectra laboratories. The Board acknowledges the contentions of the Veteran’s representative that the January 2015 VA examination is too old to adequately evaluate the Veteran’s disability. However, neither the representative nor the Veteran raised a specific allegation that the regulation of activities was now required for control of the Veteran’s diabetes mellitus, and the Board has determined that an additional VA examination is not warranted as a review of the medical records since January 2015 show no evidence of regulation of activities as treatment for the Veteran’s type II diabetes mellitus. Accordingly, a rating in excess of 20 percent for type II diabetes mellitus under DC 7913 is not warranted. 2. Chronic kidney disease associated with diabetes mellitus Service connection is currently in effect for chronic kidney disease as associated with diabetes mellitus, rated as 60 percent disabling since January 25, 2012 and as 100 percent disabling since November 4, 2016 under DC 7101-7530. DC 7530 provides that chronic renal disease requiring dialysis is rated under renal dysfunction. 38 C.F.R. § 4.115b, DC 7530. Under the criteria for rating renal dysfunction, a 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. An 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is warranted for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. The Veteran is in receipt of the maximum rating since November 4, 2016. The Veteran does not contend, and the evidence does not show that a rating in excess of 60 percent is warranted for chronic kidney disease prior to November 4, 2016. The evidence shows stage four chronic kidney disease throughout the appeal period and stage five chronic kidney disease since November 2013. The January 2015 VA kidney disability benefits questionnaire (DBQ) shows that the Veteran did not require regular dialysis and he had no proteinuria (albuminuria), edema, anorexia, weight loss, generalized poor health, lethargy, weakness, or limitation of exertion due to renal dysfunction. At times during the appeal period and prior to November 4, 2016, the Veteran had some symptoms of a higher rating including edema and BUN between 40 and 80. However, there is no evidence of these conditions in combination with albuminuria or the other symptoms required for a rating in excess of 60 percent during the appeal period prior to November 4, 2016. See January 2015 VA examination; medical evidence from the Naval Medical Center Portsmouth VA. A review of the medical evidence from the Naval Medical Center Portsmouth VA shows that the Veteran began dialysis on November 4, 2016. Accordingly, a rating in excess of 60 percent for chronic kidney disease as associated with the Veteran’s type II diabetes mellitus is not warranted prior to November 4, 2016. 3. Peripheral neuropathy associated with diabetes mellitus Although the January 2015 VA examination did not show a diagnosis of peripheral neuropathy, treatment records from Naval Medical Center Portsmouth VA treatment records show a diagnosis of diabetic peripheral neuropathy with symptoms of chronic leg swelling during the appeal period. See Naval Medical Center Portsmouth treatment records dated September 2010 through May 2016; see also January 2013 VA treatment record showing weakness and bilateral swollen legs. Accordingly, separate compensable ratings are warranted for diabetic peripheral neuropathy of the bilateral lower extremities associated with diabetes mellitus. In implementing the separate ratings for diabetic peripheral neuropathy, if the agency of the original jurisdiction (AOJ) deems necessary, it may schedule a VA examination to address any worsening of the Veteran’s diabetic peripheral neuropathy since the January 2015 VA examination. Aside from chronic kidney disease with hypertension and diabetic peripheral neuropathy of the bilateral lower extremities which are currently service-connected, the evidence does not show, nor has the Veteran contended, that there are any additional complications of his type II diabetes mellitus. See January 2015 VA examination. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel