Citation Nr: 20071879 Decision Date: 11/06/20 Archive Date: 11/06/20 DOCKET NO. 15-37 668 DATE: November 6, 2020 REMANDED Entitlement to a rating in excess of 40 percent for diabetes mellitus, type II (DM) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to September 1970. The Veteran appeared for a July 2018 hearing before the undersigned Veterans Law Judge. In March 2020, the Veteran was informed the Board was unable to produce a transcript of the July 2018 hearing due to audio malfunctions and he was provided the option to appear for another Board hearing. In March 2020, the Veteran elected not to appear for another Board hearing and have his case considered based on the evidence of record. In April 2020, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Entitlement to a rating in excess of 40 percent for diabetes mellitus, type II (DM) is remanded. The Veteran is currently assigned a 40 percent rating under Diagnostic Code (DC) 7913. He contends that he is entitled to a higher rating. Under DC 7913, a 60 percent rating is warranted when 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 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of 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. DC 7913 provides a structured scheme of specific, successive, cumulative criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). Because DC 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. Private treatment records show emergency room visits for episodes of low blood sugar and hypoglycemia, in August 2017, March 2019, April 2019, June 2019 and March 2020. However, these records do not show that the Veteran was ever hospitalized for episodes of ketoacidosis or hypoglycemic, or that he was treated twice a month by his diabetic care provider. In fact, records in March 2020 specifically note that admission to the hospital was not indicated. See treatment records from Cookeville Regional Medical Center and Tennessee Heart, PLLC. Although the medical evidence of record does not show the Veteran’s DM is severe enough to warrant a rating in excess of 40 percent, in a March 2020 statement, the Veteran noted that he had not had a VA DM examination in over two years, and requested that he be afforded a new examination. See March 2020 statement in support of claim. The Veteran’s most recent VA examination to evaluate his DM was conducted almost four years ago, in February 2017. A remand is warranted to obtain a contemporaneous examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims file/e-folder. 2. Then, schedule the Veteran for an appropriate VA examination to determine the current severity of his DM. The Veteran's claims file and a copy of this remand must be provided to the examiner for review upon examination. All indicated tests and studies should be performed. All manifestations of the Veteran's DM should be identified. 3. The examiner should specifically indicate whether the Veteran's DM 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. A complete rationale must be provided for all opinions offered. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.