Citation Nr: 20060762 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 15-34 637 DATE: September 15, 2020 ORDER Entitlement to a rating in excess of 20 percent from September 23, 1997, to May 14, 1998 is denied. Entitlement to a rating of 20 percent, but no higher, for the period from May 15, 1998, to May 13, 1999 for diabetes mellitus is granted. Entitlement to a rating in excess of 10 percent from May 14, 1999, onward, for diabetes mellitus is denied. FINDINGS OF FACT 1. For the period prior to May 14, 1999, the Veteran’s diabetes mellitus required an oral hypoglycemic agent and restricted diet. 2. From May 14, 1999, onward, the Veteran’s diabetes mellitus has been manageable by restricted diet only. CONCLUSIONS OF LAW 1. For the period prior to May 15, 1998, the criteria for entitlement to a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.119, Diagnostic Code (DC) 7913. 2. For the period from May 15, 1998 to May 13, 1999, the criteria for entitlement to a 20 percent rating, but no higher, for diabetes mellitus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.119, Diagnostic Code (DC) 7913. 3. For the period from May 14, 1999, onward, the criteria for entitlement to a rating in excess of 10 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.119, DC 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to April 1971. He served honorably in the U.S. Army, including service in the Republic of Vietnam during the Vietnam era. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in September 2017. A transcript of the hearing is of record. The Board previously remanded this case in August 2018 for additional development. Upon consideration of additional evidence obtained pursuant to the August 2018 Board remand, an interim April 2020 rating decision assigned a 20 percent rating for the period to May 15, 1998, and a 10 percent rating from May 15, 1998, onward. The case has now returned to the Board for further appellate review. 1. Entitlement to a rating in excess of 20 percent for the period from September 23, 1997, to May 14, 1998 is denied. 2. Entitlement to a 20 percent rating, but no higher, for the period from May 15, 1998 to May 14, 1999 for diabetes mellitus is granted. 3. Entitlement to a rating in excess of 10 percent from May 14, 1999, onward, for diabetes mellitus is denied. The Veteran, through his representative, contends that the appropriate remedy for the appeal is to extend the 20 percent evaluation for diabetes mellitus through May 13, 1999. The Board agrees. The Board additionally finds that a rating in excess of 20 percent prior to May 14, 1999 and a rating in excess of 10 percent from May 14, 1999, onward, is not warranted. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in 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 applies under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. An exception to this rule is where the rating criteria are successive, as they are in DC 7913 for diabetes mellitus. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, so 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Under the current DC 7913, a 10 percent rating is assigned for diabetes mellitus manageable by restricted diet only. A 20 percent rating is assigned for diabetes mellitus requiring one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is assigned for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes mellitus requiring 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 assigned for diabetes mellitus requiring more than one daily injection 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 provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Under the rating criteria above, the Veteran’s diabetes mellitus must require insulin, restricted diet, and regulation of activities in order to obtain a rating above 20 percent. See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). The term “regulation of activities” is specifically defined as “avoidance of strenuous occupational and recreational activities” with the intention of avoiding hypoglycemic episodes. See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Medical evidence is required to support this criterion; a medical provider must indicate that the claimant’s “diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity.” Id. at 364. The veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has reviewed all of the evidence in the Veteran’s record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board’s analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1278, 1380-81 (Fed. Cir. 2000).+ In this case, a VA list of outpatient medications for the period from June 1997 to January 2008 noted that the Veteran had been prescribed glyburide from October 1997 to May 13, 1999. In a March 1999 nutrition note, the dietitian noted that the Veteran had a number of symptoms for hypoglycemia and that he was at risk for recurrent hypoglycemia without food. In a June 1999 nutrition note, the Veteran asked if he could have candy and sweets now that his treatment provider had taken him off his diabetes pill. The dietitian noted that without sulfonylurea he was no longer at risk for hypoglycemia and that his last glycated hemoglobin test reflected excellent diabetes mellitus control. May 2000 and August 2003 optometry notes and a January 2004 primary care note noted that the diabetes mellitus was controlled by diet. Other notes indicated that he had non-insulin-dependent diabetes mellitus. In March, June, and July 2007 primary care notes, the provider noted that his fasting blood sugars are at goal and that he was not on oral agents; a November 2007 nutrition note and a December 2007 mental health note also noted that the diabetes mellitus was non-insulin dependent and diet controlled. In a December 2011 physician letter, the treatment provider noted that recent weight gain had caused the Veteran to acquire some diabetes but concluded that it was not safe to start a diabetes pill at the time and encouraged him to modify his diet. In an April 2014 VA examination report, the Veteran reported that he was prescribed glyburide for a few years in 1997 but the prescription was discontinued, most likely as his diabetes was controlled. The examiner noted that he was currently on a diet for his diabetes and there were no complications of diabetes. The examiner concluded that the Veteran’s disability was managed by restricted diet and did not require regulation of activities. The examiner noted that he visited his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than twice per month and had not been hospitalized for episodes of either in the past 12 months. In a February 2015 note the Veteran denied taking insulin; non-insulin-dependent diabetes mellitus was noted in an August 2015 pharmacy consultation note. At his September 2017 hearing, the Veteran testified that he had been placed on a restricted diet and was not taking medication for his disability. A VA list of outpatient medications for the period from December 2007 to March 2020 did not include any insulin or hypoglycemic agents. The Veteran was prescribed glyburide from October 1997 to May 13, 1999 and there are no prescriptions for insulin or a hypoglycemic agent from May 14, 1999, onward. In June 1999 he reported that his doctor had taken him off his diabetes pill and affirmatively stated and testified that he was on a restricted diet and was not taking medication for the diabetes mellitus. He was consistently noted by treatment providers to have non-insulin-dependent diabetes mellitus which was controlled by diet. Additionally, in the April 2014 VA examination report the examiner noted that his disability was managed by restricted diet. The Board finds the objective medical evidence provided in the VA examinations and treatment records to be probative for rating purposes. Accordingly, the Board finds that a rating of 20 percent, but no higher, for the period prior to May 14, 1999 is warranted and a rating in excess of 10 percent from May 14, 1999, onward, is not warranted. The Board has considered the doctrine of affording the benefit of the doubt to the Veteran but does not find the evidence is of such approximate balance to warrant its application. Gilbert, 1 Vet. App. at 54-56. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.