Citation Nr: 19137409 Decision Date: 05/14/19 Archive Date: 05/14/19 DOCKET NO. 13-33 455 DATE: May 14, 2019 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus, type II (diabetes), is denied. FINDING OF FACT The Veteran’s diabetes alone is not productive of regulation of activities even though his complications of peripheral neuropathy of the bilateral upper and lower extremities results in functional impairment, which is already contemplated in the separate 20 percent disability ratings assigned for each extremity. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for diabetes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service from November 1966 to October 1970, to include combat service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA), Regional Office (RO)’s May 2012 rating decision that, in relevant part, denied a disability rating higher than 20 percent for the Veteran’s service-connected diabetes. The Veteran testified in March 2016 at a RO hearing before a Decision Review Officer. He also testified at a Board video-conference hearing held before the undersigned Veterans Law Judge in September 2016. The transcripts of these hearings are associated with the claims file. Thereafter, in December 2017, the Board issued a decision in which it granted the Veteran’s claims for an increased rating for service-connected posttraumatic stress disorder (PTSD), entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities and entitlement to special monthly compensation at the housebound rate. However, the Board denied an increased disability rating for the Veteran’s service-connected diabetes, currently evaluated as 20 percent disabling. The Veteran appealed the Board’s denial as to his rating for diabetes to the Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR), in November 2018, the Court vacated the Board’s decision only as to the denial of an increased rating for diabetes and remanded the Veteran’s appeal back to the Board for action consistent with the JMPR. It is noted that the Veteran has another appeal pending before Board that seeks entitlement to the following: (1) an initial rating higher than 30 percent for service-connected coronary artery disease, (2) an effective date earlier than August 29, 2014 for the grant of service connection for coronary artery disease, (3) a compensable disability rating for service-connected bilateral hearing loss and (4) service connection for obstructive sleep apnea as secondary to service-connected PTSD. However, as the Veteran is awaiting scheduling of a Board hearing on that appeal, it is too early for Board review of that appeal. Therefore, those issues will not be considered at this time but will be the subject of a future Board decision. Entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus, type II The Veteran contends that his diabetes should be assigned a disability rating higher than 20 percent because his “diabetes is treated with diet, insulin and regulation of [his] daily activities due to complications caused by peripheral neuropathy.” He reported that he experiences burning or prickling sensation, numbness and pain in his legs and thighs and uses a cane and rolling walker for ambulation as he has experiences falls. He also stated he has numbness, pain and tingling in his arms and hands, and has trouble gripping objects and he cannot do fine work with his hands such as buttoning his shirt. Lifting more than 10 pounds or having to repetitively lift causes hi to hurt more in his arms. He stated he also has difficulties with standing or walking for any length of time or distance. See April 28, 2016 VA Form 21-4138. In support of his claim, the Veteran submitted an independent medical opinion based on a record review dated in March 2016. This independent medical opinion was not provided solely for this claim but addresses all of the Veteran’s service-connected disabilities to see if an increase in disability rating was warranted and to provide an opinion as to whether there is entitlement to individual unemployability. Thus, the examiner’s consideration of whether a rating greater than 20 percent for his diabetes is only a small portion of this report starting on page two. In his analysis, the private examiner noted that a September 2014 VA examiner stated that the Veteran’s diabetes did not require regulation of activities as part of medical management of his diabetes but noted that he had diabetic peripheral neuropathy as a complication of his diabetes. This examiner then proceeded to discuss peripheral neuropathy, what it is and what the evidence shows about the Veteran’s peripheral neuropathy. The Board notes that he did not discuss the Veteran’s diabetes itself and what functional impact it has on the Veteran’s daily activities or what restrictions it may cause him. The private examiner specifically states as to what the evidence shows that “it is my understanding that the Veteran was awarded a 20% rating for PN of upper and lower extremities, effective 2012.” The private examiner then proceeded to provide his opinion as to how he believes the Veteran’s peripheral neuropathy would restrict his activities. He stated that the Veteran “should not be exposed to activities such as being around heights, climbing or balancing” because of the peripheral neuropathy in his lower extremities. As for the Veteran’s peripheral neuropathy in his upper extremities, the examiner states that the Veteran activities are “restricted by the pain, numbness and tingling in the hands and arms. His ability to hold objects would be affected. Certainly, his fine manipulation with his hands would be substantially impaired. The PN would reduce his capacity to lift on a sustained basis and most probably limit him to ifting no more than 10 pounds occasionally.” The examiner concluded that the Veteran’s “DM with the secondary related PN would impose significant regulation of activities.” In its December 2017 decision, the Board recognized this March 2016 independent medical opinion but found that the activities listed by the examiner are not the type of strenuous activities contemplated by the regulation. The Board further found that the Veteran had not been instructed to avoid “strenuous occupational and recreational activities,” but at most has been instructed to avoid non-strenuous activities which might potentially put him in an unsafe situation, which is not akin to a medically prescribed avoidance of strenuous activities. As mentioned above, the Veteran appealed the Board’s denial to the Court and the Court vacated that decision pursuant to the parties’ agreement in a JMPR. In the JMPR, the parties agreed that the Board failed to provide adequate reasons and bases for its determination that the restrictions on the Veteran’s activities noted by his private physician did not constitute medically necessary regulation of strenuous occupational and recreational activities as contemplated by the regulation. The parties agreed that the Board’s determination that the private examiner’s opinion did not amount to a finding that the Veteran had been instructed to avoid “strenuous occupational and recreational activities was impermissibly unsupported by any medical authority, and it was based upon the Board’s non-competent disagreement with the private examiner’s medical opinion as to what constituted a medical necessary restriction of occupational and recreational activity.” Citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Hence, the Board must issue a decision that is not based on its own unsubstantiated medical opinion in denying the Veteran’s claim. The Board does not find that additional development is necessary in order to decide the claim as it finds that it may deny the Veteran’s claim on alternative grounds than in its previous decision and the Veteran has not alleged any error in the duties to notify and assist that require correction, nor does the Board find any. Under Diagnostic Code 7913, a 20 percent evaluation is warranted for diabetes requiring insulin and restricted diet or an oral hypoglycemic agent and restricted diet. A 40 percent evaluation is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent evaluation 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 evaluated separately. 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, warrants a 100 percent evaluation. See 38 C.F.R. § 4.119. Complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under DC 7913. Note 1 following 38 C.F.R. § 4.119. After considering the reasons for the JMPR and the available evidence of record, the Board does not find that additional development is necessary. Rather, the evidence is adequate to rate the Veteran’s disability. The Board continues to find that the preponderance of the evidence is against the Veteran’s claim for a disability rating higher than 20 percent for his service-connected diabetes. The Veteran’s diabetes is manifested by no more than restricted diet and the daily injection of insulin and use of oral hypoglycemics. As for regulation of activities as claimed by the Veteran, the Board finds the evidence clearly demonstrates he does not need regulation of activities to control his diabetes but that his restriction in activities is related solely due to his peripheral neuropathy of the extremities, which is a complication of his diabetes and for which he has been awarded separate disability ratings of 20 percent for each extremity. The Veteran’s April 2016 statement and the March 2016 independent medical opinion clearly relate the Veteran’s restrictions that he relates as “regulation of activities” to obtain a higher disability rating for his diabetes are due to his peripheral neuropathy. However, given that he is separately rated for his peripheral neuropathy, the functional impairment caused thereby is already contemplated in the 20 percent ratings assigned for each extremity. If those functional limitations were also considered as “regulation of activities” when rating the Veteran’s diabetes, the Board would be impermissibly double-counting the functional impairment caused by the Veteran’s peripheral neuropathy. Such double-counting is called “pyramiding”, which is to be avoided. See 38 C.F.R. § 4.14. The Board notes that this would have been permissible if the Veteran’s peripheral neuropathy was not severe enough to warrant a compensable rating since DC 7913 provides than noncompensable complications are to be evaluated with diabetes. However, since his peripheral neuropathy in all four extremities is separately evaluated at a 20 percent in each extremity, the functional impairment caused by his peripheral neuropathy has already been contemplated in those disability ratings. Furthermore, as to the March 2016 independent medical opinion, the Board did not intend in its prior decision to render an unsupported medical opinion and place that above the March 2016 private examiner’s opinion. However, the Board stands by its finding that the private examiner’s opinion is not akin to a medically prescribed avoidance of strenuous occupational and recreational activity. The Court has held that medical evidence is required to show that the regulation of activities is medically necessary. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). Moreover, like all the other criteria of DC 7913 – e.g., diet restriction, insulin injections, visits to healthcare providers – regulation of activities refers to a method of treating diabetes, not a functional limitation caused by it. This is evident from the Court’s discussion in Camacho. In that case, to show regulation of activities, the veteran cited a doctor’s comment that it might not be safe, because of diabetic complications, for the veteran to continue his work as a van driver. The Court rejected this contention, observing that “the doctor was not making an assessment that the appellant’s condition required that he not drive as a means to control his diabetes or that driving would aggravate his condition.” 21 Vet. App. at 365. Furthermore, as the Board recognized in its prior decision, the purpose of medically-required regulation of activities is to avoid a hypoglycemic episode. VA made this clear when it stated on VA Form 21-0960E-1, Diabetes Mellitus Disability Benefits Questionnaire, that for “VA purposes, regulation of activities can be defined as avoidance of strenuous occupational and recreational activities with the intention of avoiding hypoglycemic episodes.” However, from the private examiner’s statements, it appears that the purpose of the restrictions he says the Veteran has is to avoid potentially unsafe situations in which the Veteran might place himself (e.g., if he were to lose his balance or drop something heavy) due to his peripheral neuropathy or, in other words, are merely functional limitations of tasks that the Veteran cannot, or should not, perform any more. However, functional limitations caused by complications of diabetes are not “regulation of activities” designed to treat or control the Veteran’s diabetes. Id. The private examiner did not indicate in any fashion how the restrictions or functional limitations identified as caused by the Veteran’s peripheral neuropathy were necessary to avoid the risk of any hyperglycemic episodes or, in other words, to treat his diabetes. Rather, the VA examinations conducted in October 2012, April 2013 and September 2014 all reflect that the Veteran’s diabetes did not require treatment by regulation of activities but is treated by restriction of diet and daily use of oral hypoglycemic agents and injection of insulin. Moreover, the Veteran’s VA treatment records do not show any recommendations by his treating VA physicians that he restrict his activities even when he was experiencing intermittent hypoglycemic episodes in 2013 (believed to be caused by his noncompliance with taking his insulin). Rather they show that he was generally encouraged to exercise and lose weight due to multiple medical conditions including his diabetes, and that he tried to exercise mostly by walking. Consequently, the Board finds the preponderance of the evidence is against concluding that the Veteran’s diabetes required regulation of activities for control even though he had functional limitations due to his peripheral neuropathy, which functional limitations are appropriately assessed by the separate 20 percent rating assigned for each extremity. The Veteran’s appeal seeking a disability rating higher than 20 percent for his service-connected diabetes is, therefore, denied. As for the Veteran’s complications of diabetes, the Board noted in its December 2017 decision that he is in receipt of service connection for erectile dysfunction and peripheral neuropathy of the bilateral upper and lower extremities. The Court   did not disturb that part of the Board’s decision that denied higher disability ratings for those service-connected disabilities. Hence, the Board finds that it need not address those ratings again at this time. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.