Citation Nr: 21000093 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 18-12 369 DATE: January 4, 2021 ORDER Entitlement to an initial evaluation higher than 20 percent for service-connected diabetes mellitus, type II, is denied. FINDING OF FACT Throughout the period on appeal, diabetes mellitus, type II has required restricted diet, oral hypoglycemics, and one injection of insulin daily; but has not required regulation of activities. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation higher than 20 percent for service-connected diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code (DC) 7913.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Army from May 1962 to December 1967, with service in Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Phoenix, Arizona and December 2019 Board remand. In October 2019 the Veteran presented testimony at a Central Office hearing before the undersigned Veterans Law Judge. In the December 2019 remand, the Board remanded the issues of entitlement to service connection for bilateral upper extremity diabetic peripheral neuropathy and bilateral lower extremity diabetic peripheral neuropathy. In an October 2020 rating decision, service connection was granted for both issues. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial rating or effective date assigned, thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). This appeal has been advanced on the docket. 38 U.S.C. § 7107 (2012); 38 C.F.R. § 20.900(c) (2020). Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board also finds that there has been substantial compliance with the prior December 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The issue was remanded for a new VA examination and clarification regarding physical findings. The Veteran received an August 2020 VA examination and opinion. Accordingly, the Board will proceed with appellate review. Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2020). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2020). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2020). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptom that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran filed a claim in November 2016. An April 2017 rating decision granted service connection for diabetes mellitus, type II, and the Veteran disagreed with the evaluation assigned. The Veteran contends that a higher evaluation is warranted for his diabetes mellitus, type II. During the October 2019 Board hearing the Veteran indicated problems completing his activities of daily living due to diabetes and diabetic complications. 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 20 percent evaluation 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 evaluation 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 evaluation 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 evaluation 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). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. 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’ 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 the Veteran’s diabetes mellitus required only restricted diet, daily injection of insulin, and an oral glycemic agent during the period on appeal. VA treatment records and VA examinations do not show regulation of activities. Notably, VA treatment records showed exercise was encouraged. The Veteran is competent to report reduction in activities, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical evidence of record is against a finding that regulation of activities was required during the period on appeal. December 2016 VA primary care treatment indicated the Veteran’s diabetes was poorly controlled and the Veteran was instructed to follow-up in one month. During January 2017 VA primary care treatment, the VA treatment provider notes suboptimal control. The Veteran’s medication dosage was increased. The Veteran received a February 2017 VA examination. The examiner indicated treatment of diabetes with restricted diet, prescribed oral hypoglycemic agents, and additional medication. The VA examiner noted episodes of hypoglycemia and ketoacidosis less than two times per month. The examiner noted no hospitalization in the past twelve months. The examiner noted regulation of activities was not required as apart of medical management of diabetes. The VA examiner noted diabetic neuropathy or renal dysfunction for complications. The examiner determined that for functional impact, the Veteran must opportunities for regular meals and snacks to avoid hypoglucemia. The examiner noted erectile dysfunction started in 2000 but did not indicate erectile dysfunction as a complication. Under pertinent physical findings related to the diagnosis, the examiner noted antalgic gait, unsteady gait with four-point cane. The Veteran received an VA diabetology consult in December 2017. The VA treatment provider discussed diabetic complications of neuropathy. The VA treatment provider and the Veteran discussed food, exercise, and medications. The Veteran reported he stays busy throughout the day but no exercise program. The Veteran reported he does yard work and the VA treatment provider encouraged chair exercises. The VA treatment provider noted hypoglycemic episodes 1-2 times per month. The VA treatment provider also discussed insulin administration. The Veteran followed-up with VA primary care treatment in February 2018. The VA treatment provider noted improving control and continued the medications. April 2018 VA primary care treatment noted diabetes requiring insulin. August 2018 VA treatment noted improving control and to continue on medication. The Veteran returned to VA treatment in February 2019 for a follow-up. In January 2020 VA treatment the Veteran received an eye exam. The VA treatment provider noted no signs of retinopathy. During March 2020 VA primary treatment, the VA treatment provider noted severe neuropathy. The Veteran’s medication was continued. The Veteran received an August 2020 VA examination. The treatment for diabetes mellitus included: managed by restricted diet, prescribed oral hypoglycemic agents, and insulin injection once daily. The examiner noted regulation of activities was not required as a part of medical management of diabetes. The examiner noted visits to diabetic care provider less than two times per month for hypoglycemia and ketoacidosis. The examiner stated there were no hospital stays in the last twelve months. The examiner determined the only diabetic complication was peripheral neuropathy and there were no diseases caused or aggravated by diabetes. Lastly, the examiner opined the Veteran’s diabetes alone does not appear to cause significant impact to the Veteran. The examiner noted the Veteran’s diabetic peripheral neuropathy is impairing the Veteran’s sensation and proprioception abilities resulting in the use of a four-point cane to ambulate safely. The Board affords significant weight to the August 2020 VA examination. First, the examiner adequately clarified the February 2017 VA examination regarding the use of a cane. The examiner noted that Veteran’s physical limitations were not related to diabetes but to service-connected peripheral neuropathy. As noted above, the Veteran is separately evaluated for his peripheral neuropathy of all extremities. Second, the examination is consistent with the VA treatment record. The examination indicated no other complications or diseases related to diabetes. Similarly, the December 2017 VA diabetology consult only noted peripheral neuropathy as a complication of diabetes. Additionally, a January 2020 VA exam examination noted no retinopathy. The VA examination is consistent with findings of specialist treating the Veteran. There is no evidence of regulation of activities required for medical management of diabetes. By contrast, the December 2017 VA treatment provider encouraged exercise. Accordingly, a higher evaluation is not warranted. In November 2020 the Veteran submitted a statement. The Veteran stated his diabetes and neuropathy prevent him from accomplishing tasks of daily living and his disabilities have worsened since his diagnoses. First, the Board notes the Veteran was afforded a subsequent VA examination after his diagnosis to address any worsening. In the November 2020 statement, the Veteran did not allege worsening since his August 2020 VA examination. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, Snuffer is not applicable in this case. The Veteran alleged need for regular aid and attendance based on his diabetes mellitus and neuropathy in his November 2020 statement and during the October 2019 Board hearing. The Veteran stated he needed constant care to assist in accomplishing daily activities and that his neuropathy in his hands makes him unable to dress, perform certain hygiene tasks, prepare meals, and complete yard work. However, VA treatment records weight against the finding of regular need for aid and attendance. Special monthly compensation (SMC) is an inferable issue anytime a Veteran is asking for increased benefits. See Ankles v. Derwinski, 1 Vet. App. 118, 1221 (1991). Special monthly compensation is payable at a specified rate if a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot; or is blind in both eyes, with visual acuity of 5/200 or less; or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). The criteria for determining that a veteran is so helpless as to be in need of “regular aid and attendance” are contained in 38 C.F.R. § 3.352 (a). Those criteria include: (1) inability of the claimant to dress or undress him or herself or to keep him or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; (4) inability to attend to the wants of nature; or (5) incapacity, either physical or mental, that requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). First, the August 2020 VA examination made clear the Veteran’s physical impairments were related to diabetic neuropathy, which as noted above, is separately rated and is not in appellate status. Second, two VA treatment records screened the Veteran for functional impairment regarding activities of daily living and found him independent. A February 2019 VA treatment record showed the following screening results: 1) bathes self completely or needs help bathing only a single part of the body such as back, genital area, or disabled extremity; 2) gets clothes from closets and drawers, puts on clothes and outer garments complete with fastener, but may have help tying shoes; 3) goes to toilet, gets on and off, arranges clothes, and cleans genital area without help; 4) moves in and out of bed or chair unassisted, mechanical transfer aids are acceptable; 5) exercises complete control over urination and defecation; and 6) gets food from plate into mouth without help, preparation of food may be done by another person. Recently, a March 2020 VA treatment record showed the following screening results: 1) bathes self completely or needs help bathing only a single part of the body such as back, genital area, or disabled extremity; 2) gets clothes from closets and drawers, puts on clothes and outer garments complete with fastener, but may have help tying shoes; 3) goes to toilet, gets on and off, arranges clothes, and cleans genital area without help; 4) moves in an out of bed or chair unassisted, mechanical transfer aids are acceptable; 5) exercises complete control over urination and defecation; and 6) gets food from plate into mouth without help, preparation of food may be done by another person. The evidence does not show, and the Veteran does not allege an inability to feed himself, attend to wants of nature, or incapacity either physical or mental, that requires care or assistance on a regular basis to protect the him from hazards or dangers incident to his daily environment. The Veteran alleges he is unable to dress himself, and the VA treatment records showed he may need help with certain task for dressing and hygiene. Requiring assistance for dressing and hygiene does not rise to the level of need of regular aid and attendance. Additionally, there is no evidence of frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance. Accordingly, the Board finds the evidence weighs against a finding of the need for regular aid and attendance. Thus, the preponderance of the evidence is against assigning an evaluation higher than 20 percent during the period on appeal. Entitlement to an increased evaluation is denied. Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, 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.