Citation Nr: 20021716 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-12 931 DATE: March 26, 2020 ORDER Prior to April 1, 2016, an initial rating in excess of 20 percent for diabetes mellitus type I (DM) is denied. From April 1, 2016, through September 28, 2016, an initial rating of 60 percent, but no more, for DM is granted. FINDINGS OF FACT 1. The Veteran had active service from May 1996 to October 2012. 2. Prior to April 1, 2016, DM was manifested by the need for one or more injections of insulin per day and restriction of diet, with hospitalizations for ketoacidosis or hypoglycemia occurring less frequently than once per year and without regulation of activities or complications. 3. Resolving all reasonable doubt in the Veteran’s favor, from April 1, 2016, through September 28, 2016, DM was manifested by the need for one or more daily injections of insulin, restricted diet, regulation of activities, episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization in the previous 12 months, visits to a diabetic care provider less than twice a month, and noncompensable complications of DM of nephropathy and retinopathy. CONCLUSIONS OF LAW 1. For the period prior to April 1, 2016, the criteria for an initial rating in excess of 20 percent for DM were not met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913 (2019). 2. From April 1, 2016, through September 28, 2016, the criteria for an initial rating of 60 percent, but no more, for DM were met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, DC 7913 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A May 2013 rating decision granted service connection for DM and assigned an initial 20 percent rating, effective October 10, 2012, the date after his discharge from service. The Veteran appealed with regard to the initial rating assigned. A March 2018 rating decision then assigned a 100 percent rating, effective September 29, 2016, the date of a VA examination showing an increase was warranted. As this is the maximum rating available, the issue of entitlement to a higher initial rating since September 29, 2016 is rendered moot. Moreover, in a March 2018 statement, the Veteran indicated that he disagreed with the effective date assigned for the 100 percent rating. He did not file the required notice of disagreement form, and the effective date claim is not on appeal. Nevertheless, adjudicating the appropriate rating for DM prior to September 29, 2016, implicitly considers whether a 100 percent rating is warranted before that date. Therefore, any appeal of the effective date for that rating would be rendered moot as the effective date is subsumed by the appeal of the rating Initial Rating for DM Prior to September 29, 2016 Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § § 4.1. Separate diagnostic codes identify the various disabilities. Prior to September 29, 2016, the Veteran was rated at 20 percent under DC 7913 for DM. Under DC 7913, a 40 percent rating is warranted when the objective medical evidence shows DM requiring one or more daily injection of insulin, restriction of diet, and regulation of activities. A 60 percent rating is warranted when the objective medical evidence shows DM requiring one or more daily injection of insulin, restriction of diet, and regulation of activities (avoidance of strenuous occupational and recreational 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 the objective medical evidence shows DM requiring one or more daily injection of insulin, restriction of 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. Within the criteria for a 40 percent rating, “regulation of activities” is defined as “avoidance of strenuous occupational and recreational activities.” Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). The rating criteria for diabetes are successive and consideration of 38 C.F.R. § 4.7 is not required. Id. at 366. “Successive” rating criteria means 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 (2008). Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications are considered part of the diabetic process under DC 7913. 38 C.F.R. § 4.119, DC 7913, Note (1). In VA examinations dated in October 2012 and April 2016, the clinicians noted that DM was managed by one or more daily injections of insulin and restricted diet. As to episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, the record reflects that the Veteran was admitted to the hospital from December 30, 2013 to January 2, 2014 for an episode of ketoacidosis. However, while VA treatment notes dated in 2014 reflect that the Veteran avoided strenuous activities, this restriction is due to a hernia and not required to manage his blood sugar. In the April 2016 VA examination, the clinician noted that the Veteran had one hypoglycemic episode in the last year that resulted in hospitalization and that he visited his diabetic provider less than two times a month. Review of the record showed that in January 2016, the Veteran was hospitalized after a hypoglycemic event caused him to fall. Additionally, while the April 2016 clinician first marked that DM was not managed by regulation of activities, he later stated that the Veteran should not perform strenuous activities due to hypoglycemic episodes related to DM. Finally, regarding complications, while the record reflects that neuropathy of the bilateral feet has been documented by DM providers since at least September 2013, symptoms of numbness and paresthesias/dysesthesias in the lower extremities have been compensated in the separate 10 percent ratings assigned for right and left lumbar radiculopathy. The evidence does not establish that there are distinguishable neurologic manifestations associated with the Veteran’s DM. As to noncompensable complications, in July 2014, a treatment note specifically states that the Veteran had no DM complications. Whether the Veteran subsequently developed such complications, including diabetic retinopathy and nephropathy, is equivocal. An October 2014 VA treatment note found no retinopathy, neuropathy, or nephropathy. Notably, beginning March 9, 2015, in addition to DM with no complications, DM with ophthalmic and renal (as well as neurological) manifestations were added to the Veteran’s primary medical history. Even so, clinical findings do not support compensable ratings for such diagnoses. Under DC 6006, a compensable rating for retinopathy requires documented incapacitating episodes requiring at least one but less than three treatment visits for an eye condition during the past 12 months. 38 C.F.R. § 4.79. Neither the clinical record nor any other part of the record suggests that the Veteran had incapacitating episodes as a result of retinopathy. In addition, under the disability ratings for the genitourinary system, a compensable rating for renal dysfunction requires either albumin constant or recurring with hyaline and granular casts or red blood cells; or transient or slight edema or hypertension at least 10 percent disabling under DC 7101. 38 C.F.R. § 4.115a. Under 38 C.F.R. § 4.104, DC 7101, a 10 percent rating is warranted when the objective medical evidence shows the following: • diastolic pressure predominately 100 or more; • systolic pressure predominately 160 or more; or • minimum evaluation for an individual with a history of diastolic pressure predominately 100 or more who requires continuous medication or control. The record does not reflect that the Veteran’s renal impairment meets either of the above criteria. Therefore, any diabetic renal complications are noncompensable. Based on the above, the medical evidence does not support a rating in excess of 20 percent prior to April 1, 2016, but resolving all reasonable doubt in the Veteran’s favor, a rating of 60 percent, but no greater, is warranted thereafter until September 29, 2016. The 20 percent rating contemplates the Veteran’s use of insulin and restricted diet with one hospitalization for ketoacidosis in 2014. A rating in excess of 20 percent requires regulation of activities which was not present. For the period from April 1, 2016, through September 28, 2016, the Board affords the benefit of the doubt to the Veteran in granting a 60 percent rating, which contemplates the Veteran’s hospitalization for hypoglycemia in January 2016, and the reported renal and ophthalmic complications of the DM, as well as the use of insulin, restricted diet, and regulation of activities. A rating in excess of 60 percent requires hospitalizations three times per year and/or weekly visits to a health care provider. As these manifestations were not present a rating in excess of 60 percent was not warranted for this period. While noncompensable complications of DM were first noted in the Veteran’s primary medical history in March 2015, and he was hospitalized for hypoglycemia in January 2016, there was no regulation of activities recorded at that time. As indicated, the rating criteria for DM are successive and regulation of activities is required for a 60 percent rating. It is not until the April 1, 2016, VA examination that regulation of activities was documented as well as other criteria supportive of a 60 percent rating. The Board has considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s DM has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal for ratings in excess of those assigned by the RO, and the Board herein, is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). K. M. SCHAEFER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ragofsky, Attorney Advisor 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.