Citation Nr: 18160907 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-52 723 DATE: December 28, 2018 ORDER Entitlement to a rating in excess of 20 percent for service connection for diabetes mellitus with retinopathy and cataracts is denied. FINDING OF FACT The Veteran’s service-connected diabetes does not require regulation of activities. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for service connection for diabetes mellitus with retinopathy and cataracts have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.119, DC 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1987 to February 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran filed a Notice of Disagreement (NOD) with the rating decision in July 2014. A Statement of the Case (SOC) was issued in October 2016 and the Veteran filed his substantive appeal in October 2016. The Veteran testified before the undersigned via videoconference at a hearing in January 2017. A transcript of the hearing is of record. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14 ; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran is currently assigned a 20 percent rating under 38 C.F.R. § 4.119, DC 7913, which addresses diabetes mellitus. Under this diagnostic code, a 20 percent evaluation is warranted for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent evaluation is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted where the disorder 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. 38 C.F.R. § 4.119, DC 7913. First the Board acknowledges that there is sufficient evidence that the Veteran’s diabetes mellitus requires a restricted diet along with management by insulin and oral hypoglycemic agents. The critical inquiry, then, is whether his diabetes mellitus additionally requires regulation of activities. The term “regulation of activities” means that a claimant must have a medical need to avoid not only strenuous occupational activity, but also strenuous recreational activity. Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Pertinent evidence of record includes four VA examination reports dated November 2012, June 2014, December 2015, and January 2017. The January 2017 examination postdates the most recent SOC issued in October 2016. The Veteran has the right to Agency of Original Jurisdiction (AOJ) review of new evidence before the Board’s review of evidence, but the Veteran may waive this right by submitting a written waiver. In a written statement dated January 12, 2018, the Veteran stated that he wished to waive his right to AOJ review and proceed directly to review by the Board. The Board finds this express waiver to be effective and concludes that there is no prejudice to the Veteran in adjudicating this appeal at present to include consideration of all relevant evidence of record. During the VA examinations dated November 2012 and June 2014 each examiner noted that (1) the Veteran’s diabetes was managed by restricted diet, insulin, and an oral hypoglycemic agent; (2) the Veteran visited his diabetic care provider less than 2 times per month for episodes of hypoglycemia and had not been hospitalized in the previous 12 months for ketoacidosis or a hypoglycemic reaction; and (3) the Veteran’s diabetes did not require a regulation of activities. During the VA examination dated December 2015 the examiner noted that (1) the Veteran’s diabetes was managed by restricted diet and insulin; (2) the Veteran visited his diabetic care provider less than 2 times per month for episodes of hypoglycemia and had not been hospitalized in the previous 12 months for ketoacidosis or a hypoglycemic reaction; and (3) the Veteran’s diabetes did not require a regulation of activities. The December 2015 VA examiner was also of the opinion that the Veteran had a heart condition that was at least as likely as not caused by the Veteran’s diabetes. During the VA examination dated January 2017 the examiner noted that (1) the Veteran’s diabetes was managed by a restricted diet, insulin, and an oral hypoglycemic agent and (2) the Veteran visited his diabetic care provider less than 2 times per month for episodes of hypoglycemia and had not been hospitalized in the previous 12 months for ketoacidosis or a hypoglycemic reaction. The January 2017 VA examiner also indicated that the Veteran’s diabetes required regulation of activities. However, when instructed on the Disability Benefits Questionnaire to “provide one or more examples of how the veteran [sic] must regulate his or her activities,” the examiner wrote that the Veteran’s diabetes was managed by a restricted diet, insulin, and an oral hypoglycemic agent. These instructions merely repeat the Veteran’s previously prescribed treatment regimen and do not constitute instructions to avoid strenuous occupational and recreational activity as contemplated by the diagnostic code and case law. Therefore, the fact that the examiner marked “Yes” when asked if the Veteran requires regulation of activity does not by itself establish that the Veteran requires a regulation of activities. See 38 C.F.R. § 4.119, DC 7913; see also Camacho 21 Vet. App. At 363. The Board notes that the January 2017 VA examiner stated that the Veteran’s heart condition was more likely than not caused by and aggravated by the Veteran’s diabetes, causing the Veteran fatigue and loss of strength. The Board has also considered arguments put forth by the Veteran and his representative that it would have been unnecessary for a physician to instruct him to refrain from engaging in strenuous activities because the Veteran was already unable to do so because of his severe heart condition. The December 2015 VA examiner noted that the Veteran’s heart condition would give him “trouble doing strenuous activities.” The Veteran’s metabolic equivalents (METS) level on the interview-based METS test was shown to be at 1 to 3 METS, consistent with activities such as eating, dressing, taking a shower, and slow walking for 1 to 2 blocks. The examiner was of the opinion that these METS levels were solely due to the Veteran’s heart condition. However, by way of a January 2016 rating decision, VA has already granted the Veteran a 100 percent rating for congestive heart failure secondary to the service-connected disability of amputation, third right toe. His rating is based on the 1 to 3 METS. Therefore, the Veteran has already been compensated for his inability to engage in strenuous, or for that matter, less than strenuous activities. Thus, even if his diabetes led to the amputation that led to his heart rating, or required some other regulation of activities not shown by the record, a rating based on regulation of activities would amount to pyramiding. 38 C.F.R. § 4.14. What the evidence shows is that the Veteran must regulate his activities due to his heart disability but he is in receipt of a total rating for that heart disability. In sum, the Board finds the following facts especially probative: (1) three VA examinations have concluded that the Veteran’s diabetes does not require regulation of activities as defined for VA purposes; (2) the January 2017 VA exam did not provide adequate examples of regulation of activities, defined by statute and case law as restriction on strenuous occupational or recreational activity; and (3) the rule against pyramiding prohibits duplicative compensation for any symptoms of restricted activity caused by the Veteran’s heart condition, as the Veteran already has a 100 percent rating for his heart condition. Accordingly, the Board concludes that the preponderance of evidence is against assigning a rating higher than 20 percent for any period on appeal. The Veteran’s diabetes requires a restricted diet, insulin, and oral hypoglycemics, but does not require regulation of his activities. Hence, the appeal must be denied. There is no reasonable doubt to be resolved in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Garver, Law Clerk