Citation Nr: 1815578 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-21 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J. Wade, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. FINDING OF FACT The Veteran's diabetes mellitus does not require either a restricted diet or regulation of activities. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Circuit Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also met its duty to assist the Veteran. VA obtained the Veteran's service treatment records (STRs) along with all other relevant medical treatment records identified by the Veteran. These records have been associated with the claims file. VA further afforded the Veteran an appropriate VA medical examination, which is adequate. The Board finds that the VA examination and opinion described the Veteran's diabetes mellitus, type II in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The Veteran has not identified any outstanding evidence that could be obtained to substantiate his claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. Higher evaluation for diabetes mellitus, type II Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran filed a claim to increase his diabetes mellitus, type II, from 20 percent in October 27, 2011. The Veteran asserts that he is entitled to a higher evaluation due to his insulin, restricted diet, and "regulation of activities." See June 2014 VA Form 9. The Veteran's diabetes mellitus has been rated under Diagnostic Code 7913. 38 C.F.R. § 4.119. Diagnostic Code 7913 provides that requiring insulin and restricted diet; or oral hypoglycemic agent and restricted diet is rated 20 percent disabling. Requiring insulin, restricted diet, and regulation of activities is rated 40 percent disabling. 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 evaluated is rated 60 percent disabling. Requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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 is rated a maximum 100 percent disabling. The rating criteria for diabetes are successive. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). Successive criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). The term "regulation of activities" is specifically defined as "avoidance of strenuous occupational and recreational activities." Camacho v. Nicholson, 21 Vet. App. at 363. Medical evidence is required to support this criterion; a medical provider must indicate that the claimant's "diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity." Id. at 364. Although VA regulations under 38 C.F.R. §§ 4.7, 4.21 generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, those regulations do not apply where the rating schedule establishes successive criteria. Complications of diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Here, the Board notes that the Veteran's service-connected diabetes is evaluated as 20 and 40 percent disabling. Merits In February 2012, the Veteran underwent a Diabetes DBQ Exam. See May 2012 CAPRI Medical Record. The examiner said the Veteran's treatment included: an insulin injection more than once a day and an oral hypoglycemic agent. However, the Veteran's diabetes did not require him to regulate his activities. He was seeing a diabetic care provider less than 2 times per month and had not had episodes of ketoacidosis or a hypoglycemic reaction in the past 12 months. The examiner noted that the Veteran voluntarily retired, and was told that he could have an increase to his diabetes when he retired. Id. Having reviewed the evidence, the Board finds that the Veteran's diabetes warrants a 20 percent rating for the entire period on appeal. The medical and lay evidence of record reflect use of insulin and an oral hypoglycemic agent to control diabetes. In February 2017, the Veteran was counseled to eat properly, exercise regularly and take his medications. He is being monitored for his obesity, and is a part of a weight management program called "MOVE!" See May 2017 CAPRI Medical Record. There is no indication that his treatment plan includes a restricted diet or "regulation of activities." See February 2012 Diabetes DBQ Exam. Diagnostic Code 7913 provides a 20 percent rating for these symptoms. However, a higher rating is not warranted. In addition to the symptoms shown, a higher rating requires regulation of activities. The Board notes that Camacho requires a medical determination that regulated activities are required due to diabetes. Additionally, the Court in Camacho makes it clear that the term "regulation of activities" is specifically defined as "avoidance of strenuous occupational and recreational activities" and that a medical provider must indicate that the claimant's "diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity." Camacho v. Nicholson, 21 Vet. App. at 363, 364. During the appeal period, there is no evidence to support that a physician placed the Veteran on restricted activities and that he was instructed to curtail his activities so as to avoid strenuous activity due to his diabetes. If anything, the record reflects that the Veteran was encouraged to do more activities to aid in his weight management. See May 2017 CAPRI Medical Record. As the evidence does not support that the Veteran is on regulated activities during the appeal period, a rating in excess of 20 percent is not warranted. ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs