Citation Nr: 1820993	
Decision Date: 04/10/18    Archive Date: 04/19/18

DOCKET NO.  14-29 035	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to a rating for diabetes mellitus, type II in excess of 20 percent.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Patel, Associate Counsel







INTRODUCTION

The Veteran served on active duty from June 1963 to September 1967. 

This mater is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).


FINDING OF FACT

Throughout the appeal period, the Veteran's service-connected diabetes mellitus, type II required daily injections of insulin and a restricted diet but not regulation of activities.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913 (prior to and from December 10, 2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

A.  Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify regarding the diabetes mellitus, type II claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board").

As to the duty to assist, the Veteran and his representative allege he was never provided notice for an appointment with Dr. G.L.  See August 2014 Form 9 and January 2018 Informal Hearing Presentation (IHP).  In November 2010, VA sent Dr. G.L., a private physician, a request for medical records for any treatment the Veteran may have received for diabetes mellitus type II.  In December 2010, Dr. G.L. responded that he has never treated the Veteran.  In the May 2011 rating decision, the RO informed the Veteran that Dr. G.L. had indicated he had never treated the Veteran.  A review of the file reflects that the RO's November 2010 request to Dr. G.L. for records for the Veteran was made in error, as an attachment to the letter indicates it was a different Veteran who had requested VA obtain records of treatment from Dr. G.L.  The Veteran has never alleged that he received treatment from Dr. G.L. and the record does not reflect that there was ever an appointment made for the Veteran with Dr. G.L.  Therefore, there are no outstanding treatment records from this provider.  The Board apologizes on behalf of VA for any confusion this administrative error may have caused the Veteran in thinking he had missed an appointment with Dr. G.L., as there never was such an appointment, and the request for records to this provider was done in error.  

Additionally, the Veteran underwent VA examinations for his diabetes mellitus type II in January 2011 and April 2016.  Neither he nor his representative has indicated any deficiencies with either examination.

Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his diabetes mellitus type II claim.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

B.  Legal Criteria and Analysis

Disability ratings are determined by applying the criteria set forth in 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. 

With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods, based on the facts.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  

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.  38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability will be resolved in the veteran's favor.  38 C.F.R. § 4.3.

The rating criteria for the endocrine system, including diabetes, have been revised during the course of the Veteran's appeal, effective December 10, 2017.  When a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies.  VAOPGCPREC 11-97 (Mar. 24, 1997).  However, revised statutory or regulatory provisions may not be applied to any time period prior to the effective date of the change.  38 U.S.C. § 7104(c); VAOPGCPREC 3-2000 (Apr. 10, 2000).  Accordingly, the disability must be rated according to both the old and new rating criteria, and the Veteran must receive the benefit of the more favorable rating schedule.

Under the criteria effective prior to December 10, 2017, diabetes mellitus is rated under 38 C.F.R. § 4.104, DC 7913 and warrants a 20 percent evaluation when it requires insulin and restricted diet, or; oral hypoglycemic agent and a restricted diet.  A 40 percent evaluation is warranted when diabetes mellitus requires insulin, a restricted diet, and regulation of activities.  A 60 percent evaluation is warranted when diabetes mellitus 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.  A total evaluation of 100 percent is warranted when diabetes mellitus requires more than one daily injection of insulin, a 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, DC 7913 (prior to Dec. 10, 2017).

Under the criteria effective from December 10, 2017, diabetes mellitus is evaluated at 100 percent where it requires 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.

A rating of 60 percent is available where diabetes requires one or more daily injection of 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 rating of 40 percent is available where diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities.

A rating of 20 percent is available where diabetes requires one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet.

Under both versions of the rating criteria, compensable complications of diabetes 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.  See 38 C.F.R. § 4.119, DC 7913, Note (1).  

The term "regulation of activities" contained in DC 7913 means that a claimant must have a medical need to avoid strenuous occupational or recreational activities and thus medical evidence of limitation of activities is required.  See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007).
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 type II requires a regulation of activities, which is a prerequisite for a 40 percent rating under both the criteria effective prior to and from December 10, 2017.  The management of the Veteran's diabetes mellitus, type II requires the use of insulin or an oral hypoglycemic agent, and a restricted diet, which is consistent with the 20 percent rating criteria.  See January 2011 VA Examination, October 2012 VA treatment note, and April 2016 VA Disability Benefits Questionnaire (DBQ).    

The evidence does not otherwise indicate that management of diabetes mellitus, type II also required avoidance of strenuous occupational and recreational activities, which is the additional criterion necessary for the next higher 40 percent schedular rating under the criteria effective prior to and from December 10, 2017.  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).  For the period on appeal, there is no evidence to suggest the Veteran was required to avoid strenuous occupational and recreational activities to control his blood sugars and diabetes mellitus type II.  Indeed, the January 2011 VA examination documents that management of the Veteran's diabetes mellitus type II required a restricted diet, oral hypoglycemic agents, but no insulin or regulation of activities.  The April 2016 DBQ documents that the Veteran's treatment includes a restricted diet, insulin, and prescribed oral hypoglycemic agents, but not regulation of activities.  

Regarding any compensable complications of diabetes, the Veteran is separately service-connected for peripheral neuropathy of the bilateral lower extremities and chronic kidney disease, both secondary to diabetes, and the evaluation of those disabilities is not currently before the Board.  There is no indication of any other complications of diabetes that may warrant a separate compensable evaluation.

As such, the weight of the evidence is against a finding that a rating in excess of 20 percent for diabetes mellitus is warranted for any period under the rating criteria effective prior to or from December 10, 2017.  38 C.F.R. §§ 4.3, 4.7.
ORDER

Entitlement to a disability evaluation in excess of 20 percent for diabetes mellitus, type II is denied.


    

____________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs