Citation Nr: 21003863 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-44 653 DATE: January 25, 2021 ORDER Entitlement to a disability rating greater than 60 percent for diabetes mellitus, type II, is denied. FINDING OF FACT Throughout the period on appeal, diabetes was treated with multiple daily shots of insulin and infrequent episodes of ketoacidosis and hypoglycemia; diabetes was not treated with a restricted diet or the prescribed regulation of activities, did not result in progressive loss of weight or strength, and did not result in repeated annual hospitalizations or weekly visits to a treatment provider. CONCLUSION OF LAW The criteria for a rating greater than 60 percent for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1968 to October 1969, including foreign service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal and Vietnam Campaign Medal with 60 Device. This appeal was previously remanded by the Board in May 2019 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). At that time, the Board also remanded claims seeking service connection for a psychiatric disability and a total disability rating based on individual employability (TDIU). These benefits were subsequently granted in a September 2020 rating decision, and the Veteran has not expressed disagreement with these awards as assigned. As this constitutes a complete grant of the benefits being sought, these matters are no longer for the Board’s consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). With respect to the TDIU grant, the grant is effective for the entire period on appeal. Absent evidence or argument that a single of the Veteran’s disabilities results in an inability to secure or follow a substantially gainful occupation, no further consideration is required for this issue. Increased Rating The Veteran is pursuing a rating greater than 60 percent for his diabetes. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Here, the Veteran has been properly evaluated in accordance with DC 7913, which establishes a 100 percent rating upon evidence of the following: • Diabetes 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. Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. 38 C.F.R. § 4.119 In this respect, the Veteran is separately service-connected for bilateral preoperative cataracts and chronic kidney disease as secondary to his diabetes. As such, any manifestations of these conditions are not for consideration with respect to this appeal. Also as defined in DC 7913, “regulation of activities” means “avoidance of strenuous occupational and recreational activities.” Id. The requirement of regulation of activities due to diabetes must be based on the clinical findings of a medical professional. See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Because the rating criteria under DC 7913 are cumulative and successive, diabetes that does not meet the criteria at any one level of disability is precluded from the assignment of an increased evaluation at any higher level, since “each higher disability rating include[s] the criteria of each lower disability rating.” Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009) (citing Camacho, 21 Vet. App. at 366-67). In other words, this appeal cannot be granted absent competent evidence of the following: (1) One daily injection of insulin; (2) a restricted diet; (3) the regulation of activities; (4) episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider; and (5) progressive loss of weight and strength or complications that would be compensable if separately evaluated. Such a disability picture is not present in this case. Rather, the Veteran underwent medical examinations in October 2011 and December 2019. See October 2011 VA examination; December 2019 Disability Benefits Questionnaire (DBQ). On both occasions, the examiners reported the Veteran’s need for multiple insulin injections per day. During the former evaluation, the Veteran also reported the need to regulate his activities due to multiple episodes of ketoacidosis; however, the regulation of activities was self-prescribed, and subsequently denied in December 2019. Similarly, episodes of ketoacidosis were only reported in October 2011, requiring one hospitalization in the prior 12 months and approximately two visits per month to a treatment provider. Both ketoacidosis and hypoglycemic reactions were denied in December 2019. Critically, both examiners explicitly denied that the Veteran’s diabetes was treated with a restricted diet or productive of progressive loss of weight or strength. In May 2019, the Board remanded this appeal, in part, to obtain private treatment records. In November 2019, VA requested that the Veteran provide the appropriate authorization to obtain such records; there is no evidence that this notice did not reach the Veteran. See also Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014) (holding that, under the presumption of regularity, if notice is sent to the claimant’s last known address of record, it will be presumed that VA properly discharged its official duties). He did not respond, such that VA was precluded from soliciting the Veteran’s private treatment records in this case. But see March 2017 private treatment letter (noting ongoing treatment for diabetes). However, the claims file contains significant VA treatment records for consideration. Collectively, these records almost exactly corroborate the Veteran’s disability picture as documented by his examiners, to include his need for multiple insulin injections per day. At no time was the Veteran instructed by a treatment provider to regulate his diet or restrict his activities. Although infrequent episodes of ketoacidosis and hypoglycemia are documented, these events did not require repeated hospitalizations per year or weekly visits with a diabetic care provider. Further, the Veteran did not demonstrate progressive loss of weight or strength at any time. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). The Board has also considered the Veteran’s lay testimony regarding his symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also November 2013 Notice of Disagreement (NOD); December 2015 VA Form 9; April 2017 VA Form 21-526EZ; April 2017 lay statement. Notably, he has not offered testimony relevant to the criteria of DC 7913 at any time. Although he has testified as to certain functional impairment, such as limited movement and memory, it is not clear that he attributes these symptoms to his diabetes, nor is there any such evidence elsewhere in the record. See, e.g., April 2017 VA Form 21-526EZ (“I sleep more than I should because of the shots”); but see December 2015 VA Form 9 (discussing monthly shots for a psychiatric disability). In sum, the Veteran’s diabetes required multiple daily insulin injections and resulted in infrequent episodes of ketoacidosis and hypoglycemia. However, his disability was not treated with a restricted diet or the regulation of activities based on the clinical findings of a medical professional; rather, the Veteran’s activity regulation was self-imposed. A history of progressive loss of weight and strength is not known, and the Veteran’s diabetes did not result in repeated annual hospitalizations or weekly visits to a treatment provider. Accordingly, his diabetes is not of such severity as to warrant a 100 percent evaluation under the applicable rating criteria, and the appeal is thus denied. In offering this finding, the Board acknowledges that the Veteran’s diabetes is productive of additional complications than those enunciated in the rating criteria, including eye and kidney impairment. See, e.g., October 2011 VA examination; December 2019 Disability Benefits Questionnaire (DBQ). As noted above, the Veteran is separately service-connected for these disorders, such that he is already compensated for his symptoms and the appeal may not be granted on this basis. The Board has also considered the Veteran’s implicit contention that a higher rating is warranted. However, he is not competent to identify a specific level of disability according to the applicable DC. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In contrast, the Veteran’s medical providers possess the requisite expertise to render opinions regarding the degree of impairment caused by his diabetes and had sufficient facts and data upon which to base their conclusions.  In offering greater probative value to such opinions, it is found that the medical evidence supports the determination offered herein. Accordingly, the Veteran’s disability picture is not of such nature and severity as to warrant a 100 percent rating. The preponderance of the evidence is against the appeal, the benefit of the doubt rule is not applicable, and the claim is hereby denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). (Continued on next page) Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.