Citation Nr: 20054751 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 10-11 622 DATE: August 18, 2020 ORDER Entitlement to an evaluation in excess of 20 percent, prior to October 15, 2018, for service-connected diabetes mellitus type II is denied. Entitlement to an evaluation of 40 percent, from October 15, 2018, for service-connected diabetes mellitus type II is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for periodontal disease, to include as secondary to service-connected diabetes is remanded. FINDINGS OF FACT 1. Prior to October 15, 2018 the Veteran’s diabetes mellitus required only restricted diet and one or more daily injection of insulin and an oral glycemic agent during the period on appeal. 2. For the period beginning October 15, 2018 the Veteran did not experience episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, and did not have complications that would not be compensable if separately evaluated. CONCLUSIONS OF LAW 1. Prior to October 15, 2018 the criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 2. For the period beginning October 15, 2018 the criteria for a disability rating of 40 percent, but no higher, for diabetes mellitus have 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 FINDINGS AND CONCLUSIONS The claims were most recently before the Board in April 2018 when they were remanded the claims for additional development. There has been substantial compliance with the remand in connection with respect to the claim decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an evaluation in excess of 20 percent for service-connected diabetes mellitus type II. The Veteran contends that he is entitled to a higher rating because of more severe restrictions due to his diabetes mellitus type II. Under Diagnostic Code 7913, a 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. 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. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A higher rating cannot be granted based on a finding that the Veteran’s disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran’s favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran’s diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that prior to October 15, 2018 the Veteran’s diabetes mellitus required only restricted diet, use of an insulin pump, and an oral glycemic agent during the period on appeal. The VA examinations dated June 2008 and March 2015, clearly demonstrate a lack of regulation of activities by the Veteran’s medical provider. The treatment records during this period show the Veteran had some physical limitations, but his medical management did not include regulation of activities. The Veteran underwent a VA examination in October 2018 to assess the severity of his diabetes mellitus type II. When describing the Veteran’s required treatment, the VA examiner notes that the Veteran now requires regulation of activities as a part of his medical management for diabetes mellitus type II. This appears to be the first indication, to include in the treatment records, that regulation of activities was present. The medical evidence of record does not show that regulation of activities was required during the period on appeal prior to October 15, 2018. Nor does the record show episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or, twice a month visits to a diabetic care provider at any time during the period on appeal. The Veteran’s VA examinations and medical records specifically refute such a finding. The Board has considered the Veteran’s statements that his condition is worse than currently evaluated. He is competent to report symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, 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 diabetes 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 the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. With respect to complications of diabetes mellitus type II, the Veteran has been awarded service connection and separate ratings are assigned for each identifiable complication (bilateral lower extremity peripheral vascular disease, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, and left toe amputations). The medical evidence does not indicate that the Veteran has any remaining complications not subject to service-connection. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent before October 25, 2018; and a 40 percent rating, but no higher, is warranted from that date. REASONS FOR REMAND Entitlement to service connection for periodontal disease, to include as secondary to service-connected diabetes is remanded. The claim must be remanded again because the November 2018 medical opinion obtained after the Board remand is inadequate. The examiner provided a negative nexus opinion but did not adequately explain the effect of the Veteran’s diabetes on his periodontal disease, but focused only on actions by the Veteran. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding on the likely etiology of the Veteran’s periodontal disease. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. Based on a review of the record, the examiner must answer the following: (a) Is at least as likely as not that the periodontal disease is caused by the Veteran’s service-connected diabetes mellitus type II? Why or why not? (b) Is it at least as likely as not that the periodontal disease is aggravated by (defined as any increase in severity) the service-connected diabetes? The examiner must specifically address the letters from Dr. A.G. the Veteran’s treating dentist. A complete rationale should be provided for all opinions provided. If any requested opinion cannot be provided without resorting to speculation, court cases require the examiner to explain why the opinion cannot be offered M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.