Citation Nr: 21001129 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 19-35 835A DATE: January 7, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for Type II Diabetes Mellitus is denied. FINDING OF FACT The Veteran's Type II Diabetes Mellitus has not required regulation of activities as contemplated by VA regulation. CONCLUSION OF LAW The criteria are not met for a disability rating higher than 20 percent for the Type II Diabetes Mellitus. 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 did not request a hearing on his March 2020 VA Form 9 (Substantive Appeal to the Board). Nevertheless, in October 2020, VA requested that he clarify whether he wanted a hearing. In response, he indicated in November 2020 that he would be submitting a request to withdraw his hearing (see November 17, 2020 VA Form 27-0820 (Report of General Information)). However, he had never requested a hearing on the issue of his entitlement to an increased rating for his diabetes; thus, a withdrawal was unnecessary. Essentially, he has not affirmatively indicated that he wants a hearing and, instead, to the contrary, has expressly indicated that he does not. Thus, the Board does not find obligation to schedule a hearing concerning this claim. The Veteran was notified in July 1, 2020 VA correspondence that he had 90 days from that date, or until the Board issues a decision in his appeal, whichever occurred first, to submit additional evidence. October 29, 2020 VA correspondence informed him that he had 30 days from the date of that letter to choose to have a hearing, and that he could submit written statements instead of a hearing. A November 17, 2020 VA Form 27-0820 indicates he stated that he would be submitting additional medical evidence; however, he did not request an extension of time to do that and did not specify when he would be submitting the evidence. It has now been more than two months since the October 2020 letter. But, to date, VA has not received any additional evidence from him, despite his indication that he would be submitting additional evidence. Thus, the Board is going ahead and adjudicating his claim based on the evidence already of record. The Veteran underwent an examination in June 2018. In an August 2019 statement in support of claim (on VA Form 21-4138), he asserted that the examiner was “totally subjective”, demeaning, antagonistic, and belligerent. On his March 2020, VA Form 9, he maintained the examiner had failed to give him a fair and objective evaluation and that he excluded pertinent information. The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume they have properly discharged their official duties. Once the presumption of regularity has attached, it may be rebutted by clear evidence of irregularity. In the present case, the examiner was working on behalf of the government and the Board may presume that the examiner was competent to examine the Veteran and clinical records. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir 2009) (confirming that the presumption of regularity does not only apply to procedural matters, but also applies to the competency of medical professionals). VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence, but the requirement that the Veteran raise the issue of the competency of the medical examiner is best referred to simply as a “requirement” and not a “presumption of competency.” See Francway v. Wilkie, 940 F.3d 1304, 1307, n. 1 (Fed. Cir. 2019) (en banc). Even if the presumption of regularity did not apply to contract examiners, the Board finds that the examination was adequate. The Veteran’s statements are not enough to rebut the evidence of regularity as they do not contain clear evidence or even allegations of specific errors by the examiner. The Veteran’s mere belief of the examiner’s motives or sincerity in not tantamount to fact, at most only to speculation. Moreover, the claims file also includes private and VA clinical records supporting the June 2018 Disability Benefits Questionnaire (DBQ) with regards to the essential elements of the rating code. Thus, another examination is not deemed warranted. Increased Rating for the Type II Diabetes Mellitus The Veteran's diabetes is evaluated as 20-percent disabling under DC 7913, which assumes his treatment includes insulin and restricted diet or an oral hypoglycemic agent and restricted diet. In May 2018, the Veteran filed a claim for an increased rating for this disability. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, 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 evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of its entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, “staged” ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The next higher 40 percent rating would be warranted for the Veteran’s diabetes if it required insulin, restricted diet, and regulation of activities. An even greater 60 percent rating requires 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 evaluated separately. A 100 percent rating requires 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. A January 2018 private clinical record concerning the Veteran’s diabetes reflects that, on days he is not working, he should take a walk – so exercise. It was also noted with regards to “exercise” that he does not do any regularly, but that he should increase it and have a walking regimen. Thus, physical activity of this sort was encouraged, and even to a greater extent, not instead regulated or restricted. The June 2018 DBQ already mentioned shows the Veteran’s diabetes is treated with an oral hypoglycemic agent and insulin. It was also noted that he does not require regulation of his activities to manage his diabetes. As well, it was noted that the frequency of his diabetic care is less than twice a month for ketoacidoses and/or hypoglycemic reactions, and that he had not had any hospitalization for hypoglycemic reactions in the past 12 months. A June 2018 VA record indicates the Veteran should keep improving on his lifestyle modifications such as diet and exercise. A July 2018 record reflects that he should focus on diet and exercise with the medication plan. Thus, the evidence is against finding that regulation of activities is required or medically prescribed as one of the means of treating or managing his diabetes. Again, to the contrary, even more physical activity – including in the way of more exercise, has been repeatedly encouraged. An October 2018 VA pharmacy record shows the Veteran denied symptoms or episodes of hypoglycemia. An October 2018 VA DBQ for hypertension reflects that part of his medication management included a squeeze tube of dextrose “for hypoglycemia (typical once every 5 weeks or so)”. It was also noted that he has hobbies/recreation including household and yard maintenance, woodworking, and furniture refinishing. VA primary care records dated in 2019 note that he was educated about diet and exercise; he denied hypoglycemic symptoms/episodes (e.g. September, October 2018). He has not been shown to have experienced any hypoglycemic episodes owing to strenuous activities. Private medical records reaffirm the Veteran’s diabetes is handled with home glucose monitoring, Aspirin, American Diabetes Association (ADA) diabetic diet, and daily foot inspections (e.g. August 2018 and November 2019 records). These records do not mention regulation of activities. Also, the November 2019 private record notes that his diabetes should be handled with weight loss and exercise. Private November 2019 correspondence from Dr. R. Reyna states, in pertinent part, as follows: I have previously encouraged exercise as well [as a restricted diet]. However, over the last couple of years, I have recommended the [Veteran] restrict physical activities and limit his driving and operating of heavy equipment or power tools, due to his neuropathy. In a December 2019 statement in support of claim (on VA Form 21-4138), the Veteran stated that he had been instructed to reduce his physical activity and driving. On his March 2020 VA Form 9, he added that his personal doctor had requested that he restrict physical activities of operating a motor vehicle and/or tractor and operating power machinery (e.g. chain saws, power saws, snowblower, wood splitter). He stated that these restrictions have been in place for four years due to the loss of feeling in his hands and his inability to safely operate pieces of equipment. Despite this confirmation the Veteran has been encouraged to avoid certain activities because of the complications of his diabetes owing to sensory deficit (numbness, etc.) attributable to his diabetic neuropathy, that recommendation was a preventive measure to avoid injury from working with power tools or other machinery that could have hazardous consequences. That restriction is not synonymous with or tantamount to regulation of activities for VA compensation purposes. The avoidance of strenuous occupational and recreational activities is avoidance with the intention of avoiding hypoglycemic episodes. Hypoglycemic symptoms may be tremulousness, cold sweat, piloerection, hypothermia, and headaches. (See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY). The definition of "regulation of activities" in the criteria for a 100 percent rating, i.e., "the avoidance of strenuous occupational and recreational activities," applies to the "regulation of activities" criterion for a 40 percent rating under DC 7913. See Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007).) The rating criteria for diabetes are successive. Successive criteria exist where 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. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). The Court in Camacho made clear that the term "regulation of activities" is specifically defined as "avoidance of strenuous occupational and recreational activities" and that 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 363, 364. This is not what has occurred here. Dr. Reyna did not provide evidence that there was any need for regulation of activities to avoid a hypoglycemic episode. Rather, to reiterate, the Veteran was to avoid activities that would be potentially hazardous because of his neuropathy. The Board does not find that the evidence in this case reflects that it was the determination of a medical provider that the Veteran refrain from strenuous activities to avoid a hypoglycemic episode. Essentially, activities will not make his diabetes worse (i.e. result in a hypoglycemic episode). Thus, he does not need to regulate those activities to keep his diabetes from getting worse. The Board also sees the Veteran has additionally argued that his medication has increased over the years; April 2018 correspondence from Dr. Reyna confirms the Veteran’s oral and insulin medications were increased. The Board does not dispute that the Veteran uses oral hypoglycemic agents, insulin, and has a restricted diet, but these are all contemplated by his existing 20 percent rating. For these reasons and bases, an increased rating is not warranted. And, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, the Board has considered whether the Veteran is entitled to a total disability rating based on individual unemployability (TDIU). A claim for a TDIU may be raised as a derivative claim stemming from a Veteran's claim of entitlement to an increased rating for a service-connected disability, provided the disability is at least one of the reasons the Veteran is unemployable or claims to be. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is in receipt of service connection for posttraumatic stress disorder (PTSD), hypertension, diabetes, bilateral lower extremity peripheral neuropathy, bilateral upper extremity peripheral neuropathy, erectile dysfunction, and bilateral diabetic radiculopathy, for a combined evaluation of 90 percent during the entire rating period on appeal.   DBQs from 2018 indicate his diabetes, eye disability, and hypertension do not impact his ability to work. The DBQs note that his diabetic neuropathy would affect his work in that he should not work in environments with extremes of temperature or humidity. His private examiner has stated that this neuropathy would limit the Veteran’s driving and operating of heavy equipment or power tools. A 2007 VA examination for the PTSD (more than a decade prior ot the rating decision on appeal) explains the Veteran has problems getting along with the public, co-workers, and supervisors. However, the Board also sees that more recent records show he is a member of five service/social organizations, which is indicative that he still has ability to get along with others. A July 2017 DBQ for his peripheral neuropathy shows he reported that sometimes he has difficulty with his foot coming off of his gas pedal, that he drops items at times, and that he thinks that if he was still working as a city marshal his efficiency would be greatly reduced because he has some difficulty with writing due to discomfort in his hands. However, the 2017 examiner found that the Veteran’s symptoms of neuropathy were primarily subjective in nature, as the majority of the physical examination was unremarkable. The 2018 DBQ indicates he neither reported nor described symptoms of upper extremity diabetic peripheral neuropathy. With regards to the lower extremities, the examiner clarified the Veteran had right lower radiculopathy owing to a lumbar spine condition that is not a service-connected disability and had symptoms consistent with peripheral neuropathy, but that were relatively mild in nature. The claims file also includes evidence that the Veteran retired in 2003. He has a past employment history as a city marshal for three years, a Park Ranger for 12 years, a security guard for 2 years, and a policeman for 14 years. He was also a mortician part-time. He has a high school education and an Associate’s Degree in Police Science. The evidence does not reflect that he cannot obtain or maintain substantially gainful employment due to his service-connected disabilities, given his history of employment and education. For example, he had significant experience as a park ranger, which the Board can reasonably find would still be a position he could do even considering his service-connected disabilities. He has not provided sufficient evidence that it is as likely as not that he does not have the physical ability to perform sedentary, light, medium, or heavy work, that his service-connected disabilities limit him in lifting, bending, or reaching, or cause significant impairment in walking. In addition, his mental ability has not been shown to preclude work as a park ranger. The evidence also does not reflect that he would be precluded from a desk job in security or in the park service. Thus, the Board ultimately finds that the issue of entitlement a TDIU has not been reasonably raised by the record. In conclusion, then, entitlement to an increased rating is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.