Citation Nr: 21003083 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-29 271 DATE: January 19, 2021 ORDER Entitlement to an initial disability evaluation in excess of 20 percent for diabetes mellitus, type II, is denied. FINDING OF FACT The objective medical evidence shows at no time during the appeal period did the diabetes mellitus, type II, require regulation of activities, nor did its symptomatology more closely approximate episodes of ketoacidosis or hypoglycemia, hospitalizations, weight loss, or loss of strength. CONCLUSION OF LAW The criteria for an initial disability evaluation in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 38 C.F.R. § 4.119, Diagnostic Code 7913 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from November 1968 to September 1971, during part of which he served in the Republic of Vietnam. In March 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This issue was remanded for further development in October 2019, and has been returned to the Board. Increased Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating 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 (2012); 38 C.F.R. § 4.1 (2018). 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; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Entitlement to an initial disability evaluation in excess of 20 percent for diabetes mellitus, type II. The Veteran’s disorder is rated under Diagnostic Code 7913, which provides a 20 percent rating when requirements are either insulin and restricted diet or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet and regulation of activities. A 60 percent evaluation is assigned for diabetes mellitus that requires insulin, restricted diet and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least one or 2 hospitalizations per year or twice-a-month visits to a diabetes care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted where the disorder 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, Diagnostic Code 7913. Complications of diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Note (1). The criteria of Diagnostic Code 7913 are conjunctive, as they are joined by “and;” therefore, for a higher rating a claimant is required to demonstrate that all criteria in the lower ratings are met. Camacho v. Nicholson, 21 Vet. App. 360, 366-67 (2007). For example, a 40 percent rating is not assignable under Diagnostic Code 7913 if the Veteran meets all the 20 percent criteria, but only 2 of the 3 criteria at the 40 percent level. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). Moreover, the diagnostic code for diabetes is “successive,” because each higher rating first requires the elements of the lower evaluation. See Camacho, 21 Vet. App. at 360. The phrase “regulation of activities” is defined in Diagnostic Code 7913 as “avoidance of strenuous occupational and recreational activities.” Medical evidence is required to support the regulation-of-activities criterion. 38 C.F.R. § 4.119, Diagnostic Code 7913; Camacho, 21 Vet. App. at 364. Additionally, although VA regulations under 38 C.F.R. §§ 4.7 and 4.21 generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, those regulations do not apply where the rating schedule establishes successive criteria. Lastly, compensable complications of diabetes will be separately evaluated, whereas noncompensable complications will be considered part of the diabetic process. 38 C.F.R. § 4119, Diagnostic Code 7913, Note (1). An April 2008 rating decision granted service connection for diabetes mellitus, type II, at a 20 percent disability evaluation, effective September 28, 2007, the date the claim for service connection was received. On June 13 2012, VA received the Veteran’s claim for an increased initial evaluation, on which date the appeal period commenced. The Board will consider evidence in the period of one year prior to that date. Turning to the record for the appeal period, an August 2012 VA examination for diabetes mellitus stated a February 2006 diagnosis of diabetes mellitus, type II. The VA examiner noted diabetes was managed by restricted diet and by oral hypoglycemic agent(s), but the Veteran did not require regulation of activities as part of medical management of diabetes mellitus. He added that, because hypertension and erectile dysfunction pre-dated the February 2006 diagnosis of diabetes mellitus and the Veteran’s peripheral neuropathy could be caused by a long history of alcohol and drug abuse, it is less likely than not the Veteran’s diabetes mellitus, type II, first diagnosed in February 2006 has worsened. Although for the purpose of achieving a higher evaluation, regulation of activities would be necessary before considering higher evaluation criteria, the Board nonetheless notes that the August 2012 VA examiner further found the Veteran’s frequency of diabetic care was less than 2 times per month and there were no hospitalizations for episodes of ketoacidosis or hypoglycemic reactions in the past 12 months. A September 2013 VA examination for diabetes mellitus also stated the February 2006 diagnosis of diabetes mellitus, type II. The VA examiner found it was managed by restricted diet and the prescription of oral hypoglycemic agent(s). However, there was no regulation of activities. Once again, frequency of diabetic care was less than 2 times per month and there were no hospitalizations for episodes of ketoacidosis or hypoglycemic reactions in the past 12 months. A June 2015 VA nursing discharge note advised the Veteran that although he has a diagnosis of diabetes, he is not currently prescribed insulin. However, in January 2017, the Veteran’s VA primary care physician discussed beginning the use of inulin for poor blood sugar control. From that date onward, insulin, injected once per day, appears on the Veteran’s medications lists through at least January 2018. A June 2018 VA nutrition note states among the interventions for the Veteran’s diabetes, “Physical activities as tolerated.” The Board remanded this claim in October 2019 for the most recent treatment records showing the current state of blood sugar control and the treatment required, as well as a new VA examination for diabetes mellitus, type II, for current findings. Treatment records from January 2018 to as recent as December 2020 have been obtained. Additionally, as directed in the Board’s October 2019 Remand, the Veteran was afforded a VA examination for diabetes mellitus in February 2020, which stated the February 2006 diagnosis of diabetes mellitus, type II. The VA examiner noted the Veteran’s medical history of diabetes managed by restricted diet, with prescribed oral hypoglycemic agent(s) and one insulin injection per day. However, the Veteran does not require regulation of activities as part of medical management of diabetes mellitus. Additionally, the Veteran visits his diabetic care provider for episodes both of ketoacidosis and hypoglycemia less than 2 times per month. There were no hospitalizations for episodes of ketoacidosis or hypoglycemic reactions over the past 12 months. The Veteran had no progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. The February 2020 VA examiner noted complications of diabetes mellitus as being diabetic peripheral neuropathy and diabetic nephropathy or renal dysfunction caused by diabetes mellitus. The Board notes those complications are separately evaluated and presently service connected. The Board has carefully considered the March 2019 Board hearing testimony of the Veteran as well as the Veteran’s numerous reports to treatment providers, as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, lay evidence must in turn be weighed against other evidence, as all relevant evidence of varying kinds must be considered. In his March 2019 Board hearing, the Veteran testified as to “regulated activities” that “I used to be able to run and now I can’t because I -- I’m falling a lot because of my neuropathy.” (Separate ratings have been assigned for neuropathy of the lower extremities and are not at issue herein.) The term “regulation of activities” is specifically defined as ‘avoidance of strenuous occupational and recreational activities” Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). However, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In other words, a medical provider must indicate that the Veteran’s “diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity.” Id. The Board will note here, first, in the 3 VA examinations during the appeal period, to include the most recent in February 2020, no VA examiner noted from the Veteran’s medical history, as he reported it to him, that any treatment provider instructed him to avoid strenuous activities. Second, there is no medical evidence in the record, as summarized above, which contains any such instructions or findings. In fact, as stated above, the June 2018 VA nutrition note states among the interventions for the Veteran’s diabetes, “Physical activities as tolerated.” The Veteran has ceased running for exercise. The Veteran made this decision himself because, quite understandably, he fears falling. Yet, this is not based on medical evidence or advice from a medical treatment provider. He believes falling might be due to diabetes-related neuropathy. However, the Board also notes the Veteran is now approximately 70 ½ years old. The Veteran is competent to report symptoms relevant to his claim, as such things were personally experienced and observed by him and observed by him. However, the record does not indicate that he possesses the highly specialized education, training and clinical experience to be able to make medical determinations concerning diabetes. The inference he has drawn from what he experienced and observed simply falls outside the realm of his competency. The Board has assigned greater probative value to the findings of the August 2012, September 2013 and February 2020 VA examinations, as they were rendered by medical professionals after objective review of the medical evidence of record and in-person examination of the Veteran, they display a thorough knowledge of the Veteran’s medical history and their conclusions have exhibited consistency and sound clinical judgment. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). The foregoing summary of the record shows during the appeal period there are no findings that the Veteran was in need of the regulation of his activities. For that reason, an increased evaluation in excess of 20 percent is not be warranted. Moreover, as stated above, the “successive” requirements of evaluations under Diagnostic Code 7913, where evaluation for each higher disability rating must include the criteria of each lower disability rating, as a matter of law, preclude the application of any higher evaluations under the diagnostic.   The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.