Citation Nr: 18155487 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-08 404 DATE: December 4, 2018 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II (diabetes) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The management of the Veteran’s diabetes has not required regulation of activities at any time during the appeal period. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1965 to November 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Increased Ratings 1. Entitlement to a rating in excess of 20 percent for diabetes is denied. I. Veteran’s Contentions The Veteran seeks a higher rating than 20 percent for his service-connected diabetes. Specifically, he asserts that the treatment of his diabetes requires insulin, a restricted diet, and regulation of activities. See October 2014 Notice of Disagreement (NOD). II. General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. While the regulations require review of the recorded history of a disability, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever 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). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. III. Rating Criteria The rating criteria for evaluating diabetes mellitus awards a 20 percent disability rating when the treatment for this disease requires either insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. 38 C.F.R. § 4.119, DC 7913. The next higher rating of 40 percent rating is assigned when the treatment of diabetes mellitus requires insulin, a restricted diet, and regulation of activities. Id. “Regulation of activities,” for purposes of evaluation of diabetes mellitus, refers to the need to monitor, restrict, or modify activity, particularly strenuous activity, in order to maintain blood sugar control. Appropriate findings would relate to the need to monitor blood sugar before, during, or after activity; to eat sugary foods; to take additional medication; or directives to not engage in strenuous activity due to blood sugar levels. 38 C.F.R. § 4.119, DC 7913. “Regulation of activities” requires medical evidence that occupational and recreational activities have been restricted by the diabetes. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2011). Moreover, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the criteria listed in the 40 percent rating must be met in order to warrant such a rating. The provisions of 38 C.F.R. § 4.7 pertaining to a higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating, do not apply. See Camacho at 366-367; see Tatum v. Shinseki, 23 Vet. App. 152, 156 (2011) (where there are successive rating criteria as in DC 7913, to grant a higher rating where only two out of three criteria are met would eviscerate the need for different ratings since symptoms established for either rating might be the same). Thus, in order to meet the criteria for a 60 or 100 percent rating, all the criteria for each lower rating must be met. IV. Analysis The Veteran is in receipt of a 20 percent rating from August 17, 2009, for his service-connected diabetes. The appeal period is from October 16, 2013, the date of his increased rating claim, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Here, a review of the record reveals that treatment of his diabetes has not required regulation of activities at any time during the appeal period. In this regard, during his July 2013 and April 2014 VA examinations, the examiners indicated treatment for his diabetes consists of prescribed insulin and oral hypoglycemic agents. No regulation of activities requirement was endorsed and the Veteran’s ability to work was not found to be impacted. Moreover, VA treatment records note that the Veteran was educated on and encouraged to exercise and get out of his home, has a restricted diet, engages in exercises, and he used to fish and hunt before he stopped due to pain. See June 2014, November 2014, January 2015, June 2015, and July 2015 VA treatment records. Accordingly, the Board finds that the treatment of the Veteran’s diabetes requires prescribed insulin and oral hypoglycemic agents and a restricted diet which are contemplated by the currently assigned 20 percent rating and no medical evidence of a requirement of regulation of his activities. The Board acknowledges the May 2012 private treatment record where Dr. T. D. endorses the Veteran’s diabetes as requiring 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 health provider. However, this evidence is outside of the appeal period before the Board as noted above and even still is of little probative value as the physician did not provide information on what occupational and recreational activities needed regulation as requested on the form. Thus, the Board affords more probative value to the July 2013 and April 2014 VA examiners who found no requirement of regulation of activities and VA treatment records where VA providers encouraged exercise, the Veteran reported engaging in normal activities such as exercise, fishing, and hunting, and no directives to not engage in strenuous activities were noted. As the Board finds a requirement for regulation of activities is not established, it need not address any episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization or a visit to a diabetic health provider, as the criteria for a 40 percent rating is not met, thus the criteria for any higher ratings are also not met. See Camacho at 366-367; see Tatum at 156. Finally, to the extent the Veteran asserts that he does have a regulation of activities, his lay opinion does not constitute medical evidence of regulation of activities as defined above. Thus, as the preponderance of the evidence is against the claim, there is no benefit of the doubt to resolve in the Veteran’s favor and an increased rating is not warranted. REASONS FOR REMAND 2. Entitlement to a TDIU is remanded. Currently, the nature of the Veteran’s employment history is unclear. Specifically, the October 2013 VA Form 21-8940 is blank under prior employment for the last five years, in a January 2014 VA Form 21-4138 the Veteran stated he last worked in a shipyard five years ago, in a June 2014 VA treatment record the Veteran indicated he drove trucks and stopped in 2004, and in February 2016 VA Form 9, the Veteran’s representative indicated the Veteran’s previous occupation as a truck driver required him to maintain a commercial driver’s license (CDL) and that due to his service-connected diabetes, diabetic neuropathy, and posttraumatic stress disorder (PTSD) he is not able to renew his license or certification due to the medications for these disorders and his inability to pass a physical due to these conditions. Therefore, more information is needed regarding his prior work history. Updated treatment records should also be secured. The matter is REMANDED for the following action: 1. Request the Veteran complete and return an updated VA Form 21-8940 with information regarding his prior shipyard and commercial truck driver employment, including the state where he previously maintained his CDL. 2. Obtain all outstanding VA treatment records. 3. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 4. Accomplish any other development deemed appropriate, e.g., obtaining a VA examination, if necessary. (Continued on the next page)   5. Then, readjudicate the Veteran’s claim for entitlement to a TDIU. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel