Citation Nr: 20006733 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 15-06 525A DATE: January 28, 2020 ORDER Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus type II (diabetes) is denied. FINDING OF FACT The Veteran’s diabetes requires an oral hypoglycemic agent and restricted diet. CONCLUSION OF LAW The criteria for evaluation 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. §§ 3.102, 4.1-4.14, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty service from November 1969 to November 1971; and from February 1972 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. 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.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA’s Schedule for Rating Disabilities (rating schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). 1. Entitlement to a disability rating in excess of 20 percent for diabetes is denied. The Veteran contends he is entitled to a higher disability rating for his diabetes. In particular, he stated that he has been placed on a low carbohydrate diet due to his diabetes. Diabetes mellitus is rated under DC 7913. 38 C.F.R. § 4.119. Under this DC a 20 percent rating reflects diabetes mellitus requiring insulin and restricted diet or oral hypoglycemic agent and restricted diet. A 40 percent rating reflects diabetes mellitus requiring insulin, restricted diet, and regulation of activities. The enumerated criteria in DC 7913 for a 40 percent rating are part of a structured scheme of successive, cumulative (conjunctive) criteria for establishing a disability rating: each higher rating includes the same criteria as the lower rating plus distinct new criteria. A 40 percent rating is not assignable under DC 7913 if the Veteran’s disability meets all of the 20 percent criteria, but only two of the three criteria at the 40 percent level. See Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013). 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 provided, plus complications that would be compensable is separately rated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injunction 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 provide, plus either progressive with and strength or complications that would be compensable if separately evaluated. “Regulation of activities” is defined in Diagnostic Code 7913 as “avoidance of strenuous occupational and recreational activities.” 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining “regulation of activities,” as used by VA in Diagnostic Code 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating under DC 7913. Noncompensable complications are considered part of the diabetic process and not rated separately. In the July 2012 VA examination, the VA examiner noted that the Veteran is prescribed oral hypoglycemic agents. Also, it was noted that the Veteran does not require regulation of activities as part of medical management of diabetes. The Veteran’s VA and private treatment records do not show that he requires regulation of activities because of his diabetes. A May 2011 private medical record shows that the Veteran was encouraged to exercise. A February 2017 private medical record noted that the Veteran was advised to engage in “regular physical activity.” This supports a finding that he was encouraged to engage in physical activity and was not to avoid strenuous activities. The Board finds that the Veteran’s diabetes is best contemplated by the 20 percent criteria. The complete evidence of record indicates that the Veteran’s diabetes is medically maintained by prescribed oral hypoglycemic agents. Thus, a disability in in excess of 20 percent is not warranted. Accordingly, the preponderance of the evidence is unfavorable to the claim, VA’s benefit-of-the-doubt doctrine does not apply, and the claim must be denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, Associate Counsel 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.