Citation Nr: 18151224 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 18-42 093 DATE: November 16, 2018 ORDER Entitlement to a disability rating in excess of 20 percent for diabetes mellitus associated with herbicide exposure is denied. FINDING OF FACT The Veteran’s diabetes requires insulin and a restricted diet, but not regulation of activities. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1954 to December 1970. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2017). Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran’s service-connected diabetes mellitus associated with herbicide exposure has been rated at 20 percent by the RO under the provisions of Diagnostic Code 7913. Under DM 7913, a 20 percent rating for diabetes mellitus requires insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when diabetes mellitus requires insulin, restricted diet, and regulation of activities. Id. A 60 percent rating is warranted for diabetes mellitus that 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. Id. A 100 percent rating requires 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. Id. The Court has defined the “regulation of activities” as the “avoidance of strenuous occupational and recreational activities,” and concluded that medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360 (2007). Compensable complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent rating under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2017). Non-compensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. The Board notes that the rating criteria for Diagnostic Code 7913 are successive. In other words, the evaluation for each higher disability rating includes the criteria of each lower disability rating. Therefore, if any criterion is not met at a particular level, the Veteran can only be rated at the level that does not require the missing component. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting that the conjunctive “and’ in a statutory provision means that all of the listed conditions must be met). The Veteran was afforded a VA examination in July 2008. The examiner opined that the Veteran does not require regulation of activities as part of medical management of diabetes. The Veteran reported visiting his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month. He had not been hospitalized for either condition in the past 12 months. The Veteran had not experienced progressive unintentional weight loss or loss of strength due to his diabetes mellitus. The examiner also noted the Veteran to have peripheral vascular disease associated with his condition. While the Veteran may believe he is entitled to an increased evaluation for diabetes mellitus, 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 mellitus. Self-limitation of activities 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. This finding does not suggest the Veteran does not have problems with this condition (and he is encouraged to regularly monitor this problem, as he has done in the past), the only question is the degree. In this regard, a 20% evaluation will, by definition, cause the Veteran many problems, very generally indicating a 20% decrease in the Veteran’s overall ability to work. 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 mellitus is denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V. Woehlke, Associate Counsel