Citation Nr: 20007830 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-18 896 DATE: January 30, 2020 ORDER Entitlement to an initial compensable rating for service-connected diabetes mellitus, type II from August 21, 2007 to October 30, 2012; an initial rating in excess of 10 percent from October 31, 2012 to January 28, 2014; and an initial rating in excess of 20 percent from January 29, 2014, is denied. REMANDED Entitlement to service connection for bilateral pes planus is remanded. FINDINGS OF FACT 1. From August 21, 2007 to October 30, 2012, the Veteran’s service-connected diabetes mellitus, type II is not shown to require a restricted diet. 2. From October 31, 2012 to January 28, 2014, the Veteran’s service-connected diabetes mellitus, type II is shown to require only a restricted diet 3. From January 29, 2014, the Veteran’s service-connected diabetes mellitus, type II is shown to require no more than an oral hypoglycemic agent and restricted diet. CONCLUSION OF LAW The criteria for an initial compensable rating for service-connected diabetes mellitus, type II from August 21, 2007 to October 30, 2012; an initial rating in excess of 10 percent from October 31, 2012 to January 28, 2014; and an initial rating in excess of 20 percent from January 29, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from September 1964 to September 1968. Increased Rating—Diabetes Mellitus, Type II The Veteran’s diabetes mellitus, type II, has been evaluated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 10 percent rating is warranted for diabetes mellitus that is manageable by a restricted diet only. Under this Diagnostic Code, 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 that requires insulin, a restricted diet, and regulation of activities. Regulation of activities is defined by Diagnostic Code 7913 as the “avoidance of strenuous occupational and recreational activities.” Medical evidence is required to show restriction of occupational and recreational activities. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Compensable complications from diabetes mellitus are 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 Diagnostic Code 7913. [Note (1)]. “Successive” rating criteria, such as Diagnostic Code 7913 for diabetes mellitus, is 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 (2009). For example, the diagnostic code for diabetes mellitus (Diagnostic Code 7913) is successive because each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent; the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different findings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to October 30, 2012, the Veteran’s service-connected diabetes mellitus, type II is not shown to require a restricted diet. The Veteran’s VA medical records dated prior to October 30, 2012 note that the Veteran had borderline diabetes but do not indicate that the Veteran required a restricted diet to manage his diabetes. Therefore, a compensable rating of 10 percent is not warranted. Rather, the current noncompensable rating for this portion of the appeal period more closely approximates the criteria for the Veteran’s symptoms. Accordingly, entitlement to an initial compensable rating for service-connected diabetes prior to October 30, 2012 is denied. From October 31, 2012 to January 28, 2014, the Veteran’s VA medical records indicate that the Veteran was diagnosed with type II diabetes but was able to control his diabetes through diet and exercise. See November 2012 VA medical records. This restricted diet more closely approximate the criteria for a 10 percent rating under the DC. The medical records of evidence do not show that, during this portion of the appeal period, the Veteran’s diabetes also required insulin or an oral hypoglycemic agent. Therefore, the next higher rating of 20 percent is not warranted for this portion of the appeal period. Accordingly, entitlement to a rating in excess of 10 percent for service-connected diabetes from October 31, 2012 to January 28, 2014 is denied. Since January 29, 2014, the Veteran has sought out additional treatment for his diabetes. His VA medical records dated since January 29, 2014 show that he was prescribed an oral hypoglycemic agent. The most recent VA medical examination from April 2017 shows that his diabetes did not require daily insulin injections or regulation of activities. He visited his diabetic care provider less than two times per month. There was no history of hospitalizations for ketoacidosis or hypoglycemic reactions. There was no history of progressive unintentional weight loss and loss of strength. His diabetes mellitus did not impact his ability to work. Relevant VA medical reports of record make clear that the Veteran does not require regulation of activities as part of medical management of his diabetes mellitus. The Veteran has not asserted otherwise. Therefore, the evidence is insufficient to show that the criteria for an initial evaluation for the next higher rating of 40 percent under Diagnostic Code 7913 have been met, to include a required regulation of activities as that term is defined in the applicable regulation or daily insulin injections. The Board therefore concludes that, since January 29, 2014, his symptoms more closely approximate the criteria for the currently assigned rating of 20 percent. Accordingly, entitlement to a rating in excess of 20 percent for service-connected diabetes from January 29, 2014 is denied. For the reasons stated above, the claim for an initial compensable rating for service-connected diabetes mellitus, type II from August 21, 2007 to October 30, 2012; an initial rating in excess of 10 percent from October 31, 2012 to January 28, 2014; and an initial rating in excess of 20 percent from January 29, 2014, must be denied. REASONS FOR REMAND Service Connection—Bilateral Pes Planus The Veteran claims that his bilateral pes planus is related to his service. His September 1964 entrance examination notes that he had pes planus. However, he was allowed to serve and was initially protected from field duty. See April 1968 Service Treatment Records (STRs). He began reporting foot problems in August 1967. He was prescribed bilateral arch supports. His STRs corroborate his November 2019 testimony regarding his service. The Veteran underwent a VA examination in April 2014. The examiner opined that “Veteran’s bilateral pes planus is not incurred in or caused by IN-SERVICE INJURY, EVENT, OR ILLNESS that occurred during military service.” The examiner noted that the Veteran’s pes planus was a pre-existing condition but was not aggravated by his service. However, the examiner does not support his statement with any rationale. Significantly, the examiner does not address the STRs that document the Veteran’s increasing complaints of pain during his service. Accordingly, for the reasons stated above, the Board finds that the examination is inadequate and that a new examination is necessary to adjudicate this claim fairly. Accordingly, this matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records. 2. Then, schedule the Veteran for an appropriate VA examination to address the nature and etiology of his bilateral pes planus. The examiner must review the claims file. Any necessary studies or tests should be conducted. Upon review of the record, as well as an interview with and examination of the Veteran, the examiner is asked to opine: Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s current pes planus disability was aggravated (i.e., permanently worsened beyond natural progression) by his service. In answering this question, the examiner must address the Veteran’s service treatment records from 1967 and 1968. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, or to report for a scheduled VA examination, may impact the decision made. 38C.F.R. § 3.655 (2019). He has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law requires that all remands by the Board or the United States Court of Appeals for Veterans Claims be handled in an expeditious manner. 38U.S.C.A. §§ 5109B, 7112 (West 2014). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Edward G. Lent 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.