Citation Nr: 18152046 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 16-51 787 DATE: November 21, 2018 ORDER Entitlement to an initial evaluation in excess of 20 percent for service-connected type II diabetes mellitus is denied. Entitlement to an effective date prior to March 2, 2015, for service connection for type II diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran’s type II diabetes mellitus is controlled by insulin and a restricted diet, but not through regulation of activities; there is no evidence of hospitalizations due to episodes of ketoacidosis or hypoglycemic reactions. 2. The Veteran first applied for service connection for type II diabetes mellitus on March 2, 2015, more than a year after separating from service, and after entitlement to the benefits arose. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for service-connected type II diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.119, Diagnostic Code 7913. 2. The criteria for establishing an effective date prior to March 2, 2015, for service connection for type II diabetes mellitus have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.303, 3.400, 4.119. REFERRED The issues of gout as secondary to service-connected diabetes and melanomas due to herbicide exposure were raised in the September 2016 substantive appeal and are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from November 1965 to November 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an initial evaluation in excess of 20 percent for service-connected type II diabetes mellitus Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). The Veteran’s service-connected diabetes mellitus is rated under Diagnostic Code 7913 for diabetes mellitus. 38 C.F.R. § 4.119, Diagnostic Code 7913. This rating schedule provides for 10 percent disability rating where the diabetes mellitus is manageable by restricted diet only. A 20 percent evaluation is assigned where the diabetes mellitus requires insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is assigned where the diabetes mellitus requires insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). 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-monthly visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated warrants a 60 percent rating. 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 evaluated warrants a 100 percent evaluation. The rating schedule under Diagnostic Code 7913 directs the agency to evaluate compensable complications of diabetes separately, unless they are part of the criteria used to support a 100 percent evaluation. To receive a disability rating in excess of 20 percent disabling, the evidence must show diabetes mellitus requiring insulin, restricted diet, and regulation of activities. The Veteran’s private medical records indicate that he takes insulin and is recommended a restricted diet. The records indicate the Veteran visits his private physician three times a year for a diabetes mellitus check-up. Although the records do discuss exercise, rather than restricting it, the Veteran’s private physician consistently recommended the Veteran participate in continued exercise in order to reduce cardiac risk. The August 2015 VA examination specifically noted that the Veteran is not restricted in his ability to perform strenuous activities due to his diabetes. The examiner further noted no hospitalizations for episodes of ketoacidosis or hypoglycemic reactions, nor any complications of diabetes. The remaining treatment records also do not indicate any required restriction of activities. The Board acknowledges the Veteran’s reports that he has developed gout due to the diabetes, and that he has been to the emergency room several times due to blood sugar spikes. However, as noted above, the claim of service connection for gout as secondary to the diabetes mellitus has not been adjudicated by the AOJ and is not part of this appeal. As referenced above, the issue has been referred to the AOJ for appropriate action. The visits to the emergency room are not indicative of hospitalizations for episodes of ketoacidosis or hypoglycemic reactions, both of which involve low blood sugar. Therefore, as there is no evidence that the diabetes requires regulation of activities, nor is there evidence of hospitalizations due to any episodes of ketoacidosis or hypoglycemic reactions, an evaluation in excess of 20 percent for the Veteran’s service-connected diabetes mellitus is not warranted. 2. Entitlement to an effective date prior to March 2, 2015, for service connection for type II diabetes mellitus The Veteran asserts that he is entitled to an earlier effective date than March 2, 2015, for the grant of service connection for diabetes. He contends that the benefits should be retroactive to the date of his exposure to herbicides during service. Under VA laws and regulations, the effective date of an award of disability compensation based on presumptive service connection shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(ii). However, if the presumptive service connection claim is received within one year after separation from service, the effective date shall be the date entitlement arose, unless that date falls during the period of active service on which the presumption is based, in which case, it shall be the day following separation from service. Id. The Veteran submitted his current claim more than one year after service, on March 2, 2015. This is also the first claim for benefits for diabetes. There is no communication prior to March 2, 2015, that can be construed as a claim for service connection for diabetes. The Veteran’s medical records indicate treatment for diabetes prior to March 2015. The claim was received more than one year following the Veteran’s separation from service, as well as after the date entitlement arose. Therefore, the proper effective date is March 2, 2015, and the Veteran’s claim for an earlier effective date must be denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel