Citation Nr: 18100768 Decision Date: 04/20/18 Archive Date: 04/20/18 DOCKET NO. 14-33 292 DATE: April 20, 2018 ISSUE DECIDED: 1 ISSUES REMANDED: 0 ORDER Entitlement to an initial rating higher than 20 percent for diabetes mellitus is denied. FINDING OF FACT The Veteran’s type 2 diabetes mellitus has been manifested by the need for oral hypoglycemic agents and a restricted diet. CONCLUSION OF LAW The criteria for an initial rating higher than 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to February 1969. This matter is on appeal from a November 2013 rating decision. In the September 2014 substantive appeal, the Veteran selected to attend a hearing before the Board. However, in February 2015 the Veteran withdrew his hearing request in writing. Accordingly, the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). Increased Rating Claim Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical and industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran’s diabetes mellitus has been rated 20 percent disabling under Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet; or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities (defined within the diagnostic code as avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for 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 evaluated. A 100 percent rating is warranted for diabetes mellitus 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. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017). Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2017). Turning to the merits of the claim, a July 2013 VA diabetes mellitus Disability Benefits Questionnaire examination indicates that the Veteran’s type 2 diabetes mellitus was treated with a prescribed oral hypoglycemic agent. The examiner indicated that the Veteran’s diabetes mellitus did not require regulation of activities or visits with his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions. There were no episodes of ketoacidosis or hypoglycemia that required hospitalization over the past 12 months, progressive unintentional weight loss attributable to diabetes mellitus, or recognized complications of diabetes mellitus. VA treatment records include an October 2014 report which shows that his diet was not at goal, but he was compliant with medications and had no diabetic complications. A November 2014 report shows that he was on a diabetic diet and increased physical activity was encouraged. A December 2014 report indicates that his glucose appeared well-controlled and that he was working hard to manage his diet. On review of the evidence, the Board finds that a rating in excess of 20 percent for the Veteran’s service-connected diabetes mellitus is not warranted at any time during the pendency of the appeal. The threshold requirement for a 40 percent rating is regulation of activities. Camacho v. Nicholson, 21 Vet. App. 360 (2007). In order to meet a higher rating of 40 percent, the Veteran must have been told to avoid any strenuous occupational or recreational activities. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017). While the evidence shows that the Veteran was prescribed insulin and placed on a restricted diet, contrary to the Veteran’s contention, the evidence does not indicate that the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities, as is required in order to merit a higher rating of 40 percent. Rather, the evidence tends to indicate that physical activity and exercise were encouraged. In addition, there were no periods of ketoacidosis or hospitalization for treatment of his diabetes mellitus. Therefore, the Board finds that the medical evidence does not support an initial rating greater than 20 percent for the Veteran’s service-connected diabetes mellitus at any time during the pendency of the appeal, as his overall symptomatology more nearly approximates the criteria for a rating of 20 percent. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating higher than 20 percent for his diabetes mellitus. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel