Citation Nr: 18156649 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-63 416 DATE: December 10, 2018 ORDER Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus with bilateral diabetic retinopathy, for accrued benefits purposes, is denied. FINDING OF FACT Throughout the appeal period, diabetes mellitus type II was managed using insulin and a restricted diet; regulation of activities was not required to control diabetes. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for diabetes mellitus have not been met on an accrued benefits basis. 38 U.S.C. §1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.1000, 4.119, Diagnostic Code (DC) 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to September 2000. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction has since been transferred to the RO in Houston, Texas. The Veteran died in February 2015. The appellant filed a timely request for accrued benefits in March 2015. The RO found the appellant to be the Veteran’s surviving spouse for VA compensation purposes, and she has been awarded dependency and indemnity compensation benefits. (See April 2015 rating decision). In addition, the RO has referred to the Veteran’s surviving spouse as the appellant in the current appeal. (See November 2016 Statement of the Case; February 2017 VA Form 8.) Thus, while an explicit decision regarding substitution is not of record, the appellant’s substitution claim has been implicitly granted, and the Board finds no reason to disturb this decision. Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus with bilateral diabetic retinopathy, for accrued benefits purposes, is denied. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. Accrued benefits are the monetary sums which the Veteran was legally entitled to receive from VA at the time of his death but were unpaid. Upon the death of the Veteran, all benefits which are properly payable shall be paid to the Veteran’s spouse, if living. 38 U.S.C. § 5121 (a), 5121(a)(2); 38 C.F.R. § 3.1000 (a). Further, applications for accrued benefits must be filed within one year after the date of death of a purported claimant. 38 U.S.C. § 5121 (c); 38 C.F.R. § 3.1000 (c). Similarly, a request for a claimant to be substituted as an appellant for purposes of processing a claim for VA benefits to completion must be filed not later than one year after the date of death of the original claimant. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010 (b). At the time of his death, the Veteran had several pending claims, including one for an increased rating for diabetes mellitus. The appellant filed an application for accrued benefits within one year of the Veteran’s death and filed a timely notice of disagreement regarding the diabetes mellitus claim in response to the April 2015 rating decision. Additionally, she has been properly substituted for the Veteran for purposes of processing this claim to completion. See 38 U.S.C. §§ 5121 (c), 5121A; 38 C.F.R. §§ 3.1000 (c), 3.1010(b). 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). For the entire rating period on appeal, diabetes mellitus has been rated at 20 percent under the criteria at 38 C.F.R. § 4.118, DC 7913. Under DC 7913, diabetes mellitus which is manageable by restricted diet only is rated at 10 percent. Diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet, is rated at 20 percent. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) is rated at 40 percent. 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 a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated, is rated at 60 percent. 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 rated, is rated at 100 percent. Note (1) to DC 7913 provides that compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that management of the Veteran’s diabetes mellitus required a regulation of activities as set forth by the criteria for a 40 percent rating under DC 7913. Throughout the rating period on appeal, management of diabetes mellitus required the use of insulin and a restricted diet, which is consistent with the 20 percent rating criteria under DC 7913. See VA Treatment Record dated May 7, 2009. The evidence does not otherwise indicate that management of diabetes mellitus also required avoidance of strenuous occupational and recreational activities, which is the additional criterion necessary for the next higher 40 percent schedular rating. See Camacho v. Nicholson, 21 Vet. App. 360 (2007) (holding that the criteria for rating diabetes mellitus are conjunctive, and that each element of the criteria is needed to meet the requirements for the specified evaluation). The Board acknowledges the October 2015 private treatment letter, which indicated that the patient became wheelchair-dependent after a stroke in February 2013. However, evidence must document that the avoidance of strenuous activities is required/prescribed as part of medical management of the individual’s diabetes. There is no indication that Veteran had been advised by a physician to reduce his physical activities due to diabetic symptoms or complications. Thus, for the increased rating period on appeal, there is no evidence to suggest the Veteran was required to avoid strenuous occupational and recreational activities to control his diabetes mellitus prior to his death. Indeed, VA treatment records reflect that the Veteran’s treatment included insulin and a restricted diet. Furthermore, VA treatment records provide no evidence that the diabetes mellitus required that his activities be regulated. As such, the weight of the evidence is against a finding that a rating higher than 20 percent under DC 7913 for diabetes mellitus is warranted for any period. 38 C.F.R. §§ 4.3, 4.7. The Board has also considered whether a separate compensable rating is warranted for diabetic retinopathy. However, under 38 C.F.R. § 4.79, DC 6006, diabetic retinopathy is rated based upon visual impairment or incapacitating episodes. For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. As there is no evidence that establishes any incapacitating episodes, the criteria for a compensable rating under Diagnostic Code 6006 have not been met. Regarding visual impairment, under 38 C.F.R. § 4.79, Diagnostic Codes 6061 to 6066, visual acuity is rated based upon the best corrected distance vision. See 38 C.F.R. § 4.76 (b). In this case, the Veteran had 20/30 corrected vision in both eyes. See VA Treatment Record dated June 15, 2009. Therefore, the criteria for a compensable rating under DCs 6061-6066 have not been met. The appellant has not raised any other issues with respect to the increased rating claim, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel