Citation Nr: 21000748 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-58 798A DATE: January 6, 2021 ORDER Entitlement to a rating higher than 20 percent for service-connected diabetes mellitus is denied. Entitlement to a rating higher than 10 percent for service-connected cervical spine disability prior to January 30, 2020 is denied; however, a 20 percent rating from January 30, 2020 is granted. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus, type II requires insulin, oral hypoglycemic agents and a restricted diet, but it does not require regulation of activities or result in episodes of ketoacidosis, hypoglycemic reaction requiring hospitalization or visits to a diabetic care provider, unintentional weight loss, or progressive loss of strength. 2. Prior to January 30, 2020, the Veteran’s service-connected cervical spine disc disease was manifested by forward flexion of 35 degrees and combined range of motion of 235 degrees. 3. From January 30, 2020, the Veteran’s service-connected cervical spine disc disease was manifested by forward flexion of 35 degrees, a combined range of motion of 200 degrees, but he also experienced range of motion limited by 10-20 percent due to painful flare-ups and repeated use. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for service-connected diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.119, Diagnostic Code 7913. 2. The criteria for a rating higher than 10 percent for service-connected cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from August 1980 to March 1990. The Veteran testified at a Travel Board hearing in June 2019 before the undersigned Veterans Law Judge. A transcript is associated with the record. The Board remanded the appeal in January 2020 in order to obtain new VA examinations and an opinion. Exams were conducted in January 2020. The July 2020 rating decision awarded service connection for the Veteran’s lumbar spine disability and a TDIU. The TDIU claim was granted effective day after he last worked full time. As such, the Veteran’s appeal as to those claims has been satisfied. Increased Rating 1. Entitlement to a rating higher than 20 percent for service-connected diabetes mellitus. The Veteran contends that he is entitled to a disability rating higher than 20 percent for his service-connected diabetes mellitus. The probative evidence reflects that the Veteran’s diabetes requires insulin and a restricted diet, but no regulation of activities. The Veteran’s diabetes is evaluated under 38 C.F.R. § 4.119, DC 7913. Under this code, a 20 percent rating is warranted for diabetes mellitus that requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus that requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, or twice per month visits to a diabetic care provider, plus complications that would be compensable if separately evaluated. A 100 percent rating 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. Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating, but non-compensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, DC 7913, Note (1). To demonstrate a regulation of activities, medical evidence is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase “regulation of activities” means “avoidance of strenuous occupational and recreational activities.” Id. at 362 (quoting 38 C.F.R. § 4.119, DC 7913 (defining the term within the criteria for a 100 rating)). The Veteran indicates that he is entitled to a 40 percent rating for his diabetes mellitus because he is unable to do certain activities that he used to do for enjoyment, such as running, lifting weights, and playing sports. Treatment records were reviewed and reflect that the Veteran required insulin and a restricted diet for his medical management of diabetes. Records from early 2019 show the Veteran was unable to workout often due to pain in his right knee and low back. In October 2019, the Veteran was seen for follow-up on his diabetes mellitus, hypertension, and hyperlipidemia. The physician recommended that he continue physical activity as much as possible. In 2019 and 2020, he participated in physical therapy for his lower back and lower extremity problems. He also performed several exercises at home at the direction of his provider. In January 2020, he reported working out at the gym a couple days each week. The January 2015 examination report indicated that the Veteran was prescribed more than one injection of insulin per day, but he did not require regulation of activities as part of medical management for diabetes. He had zero episodes of ketoacidosis and three or more episodes of hypoglycemia requiring hospitalization in the year prior to the exam. There was no loss of strength or weight due to his diabetes mellitus. During the January 2020 VA examination, the Veteran’s treatment required more than one injection of insulin per day, restricted diet, and oral hypoglycemia agents. The examiner reported that the Veteran did not require regulation of activities as part of medical management. The Veteran visited his medical provider less than twice per month for episodes of hypoglycemia and ketoacidosis, and there were zero hospitalizations related to either condition. There was no loss of strength or weight associated with his diabetes mellitus. Upon review of the evidence of record, the Board finds that the Veteran’s diabetes mellitus type II required insulin and a restricted diet, but there was no regulation of activities due solely to his diabetes mellitus. Throughout the period of appeal, the Veteran used insulin, oral hypoglycemic agents, and a restricted diet to help manage his diabetes. The Veteran’s representative has indicated that the use of insulin warranted self-regulation of occupational and recreational activities in order to avoid hypoglycemic episodes. However, the diagnostic code requires that regulation is prescribed or ordered by a physician, not decided by the Veteran. There is no indication that the Veteran’s activities were regulated at the direction of a physician. Rather, the opposite has been found. The Veteran was told by a physician to engage in physical activity as much as possible in October 2019. At no time during the period of appeal did the VA examiners or the Veteran indicate that the he had episodes of ketoacidosis or hypoglycemic reactions that required 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 (other than already service-connected hypertension, peripheral neuropathy and retinopathy); no unintentional weight loss attributable to diabetes; and no progressive loss of strength. Therefore, a higher disability rating under DC 7913 is not warranted. For the foregoing reasons, a rating higher than 20 percent for diabetes mellitus, type II, is not warranted. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 2. Entitlement to a rating higher than 10 percent for service-connected cervical spine disability. The Veteran’s degenerative disc disease of the cervical spine is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if the forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the cervical spine is not greater than 170 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is warranted if forward flexion of the cervical spine is 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted if there is unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the cervical spine are flexion from 0 to 45 degrees, extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees, and lateral rotation from 0 to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. 38 C.F.R. § 4.71a, Plate V. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Treatment records show the Veteran complained of ongoing neck pain for which he did not treat. A November 2019 noted indicated he had normal range of motion in his neck. The Veteran participated in physical therapy in 2018 for his cervical pain. A private evaluation conducted in December 2018 showed the Veteran’s cervical range of motion was measured to 35 degrees of forward flexion, 45 degrees of extension, 30 degrees of right lateral flexion, 25 degrees of left lateral flexion, and 50 degrees of right and left cervical rotation. Combined range of motion was 235 degrees. The Veteran’s September 2015 VA examination revealed a diagnosis of degenerative arthritis. Forward flexion of the cervical spine was to 45 degrees. Combined range of motion of the cervical spine was 285 degrees. Pain was noted on the exam at right lateral flexion and rotation but did not result in/cause functional loss. There was no loss of muscle strength, atrophy, radiculopathy, or ankylosis. The Veteran denied flare-ups, but described experiencing functional impairment in the form of interference with typical activities of daily living. There was no pain with weightbearing. He was able to perform repetitive use testing, and there was no additional loss of function or range of motion. During the January 2020 VA examination, range of motion testing revealed forward flexion to 35 degrees and combined range of motion was 200 degrees. The Veteran complained about constant neck pain with occasional flare-ups of intense pain that limited motion approximately 10 to 20 percent. The pain on movement did not result in or cause functional loss. There was objective evidence of localized tenderness or pain on palpation at the right paracervical Based on the foregoing, from January 30, 2020, the Veteran is entitled to a 20 percent rating for his cervical spine disability. Although the examiner was not able to describe the functional loss in terms of range of motion, the higher rating is based on a report of painful flare-ups and repeated use that caused a 20 percent decrease in range of motion. Prior to January 2020, the Veteran’s forward flexion was at worst to 35 degrees and combined range of motion was 235. As such, there was no medical evidence showing worse range of motion that would warrant a higher rating. (Continued on the next page)   As such, the preponderance of the evidence is against a rating in excess of 10 percent prior to January 30, 2020; however, a 20 percent rating, but no higher, is warranted from that time. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Price, 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.