Citation Nr: 21004685 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-39 283 DATE: January 27, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for diabetes mellitus is denied. FINDING OF FACT The Veteran’s diabetes mellitus does not require regulation of activities. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for diabetes mellitus under Diagnostic Code 7913 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the Marine Corps from May 1963 to November 1967, with service in the Republic of Vietnam. He had additional periods of active duty in the Coast Guard Reserve from September 2001 to January 2002 and from March 2003 to July 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). The Veteran’s claims were previously remanded by the Board in an April 2019 decision. The Board specifically directed the RO to obtain an opinion on whether the Veteran’s diabetes mellitus, type II, requires that his activities be regulated and whether the Veteran experiences episodes of ketoacidosis or hypoglycemic reactions resulting in hospitalizations. The Board finds that the RO has substantially complied with the April 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an evaluation in excess of 20 percent for diabetes mellitus The Veteran contends that he is entitled to a higher rating because his diabetes mellitus, type II (DM) has progressively worsened since his last examination. Specifically, the Veteran contends that his DM requires him to take insulin, restrict his diet, and regulate his activities. 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 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating 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 rating 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 rating 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 rating 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). The Board notes that the Veteran was granted service connection for several complications of diabetes under separate evaluations in a July 2020 Rating Decision. 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 and one or more daily injection of insulin and medical history of requiring an oral glycemic agent during the period on appeal. In September 2013, the Veteran submitted a Disability Benefits Questionnaire from Dr. RM. Dr. RM indicating that his treatment included a restricted diet, prescribed oral hypoglycemic agents, 1 insulin injection per day, and exercise three times a week. Dr. RM did not answer whether the Veteran required regulation of activities as part of medical management of DM. Dr. RM also indicated the Veteran visits his diabetic care provider less than 2 times per month and has required 0 hospitalizations, weight loss, or loss of strength related to his diabetes. Dr. R.M. also indicated the Veteran had developed neuropathy and ED due to his DM. In November 2019, the Veteran was afforded a VA examination for his diabetes mellitus, type II (DM). The VA examiner noted that the Veteran’s diabetes was managed by restricted diet, he was prescribed an oral hypoglycemic agent, and required more than 1 Insulin injection per day. The VA examiner further indicated the Veteran did not require regulation of activities as part of medical management of his diabetes; visited his provider for episodes of hypoglycemia less than 2 times per month and had 0 hospitalizations for ketoacidosis or hypoglycemic reactions in the last 12 months. The VA examiner did find additional complications of DM including peripheral neuropathy and diabetic nephropathy or renal dysfunction caused by DM. The VA examiner also noted that the Veteran’s DM did not impact the Veteran’s ability to work. A review of the medical evidence during the appeal period does not reflect prescribed regulation of activities or avoidance of strenuous occupational and recreational activities. An April 2018 treatment note indicates that the Veteran was recommended to engage in some exercise. In October 2018, treatment notes indicate that the Veteran’s blood glucose levels were at his goal with exercise. Treatment notes from February 2019 indicated the Veteran was walking at least 1 mile daily. In his July 2017 Appeal to the Board, the Veteran indicated that his activity level and diet were restricted by his VA doctor. The Veteran is competent to report discussions of a reduction in activities with his physician, 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. The Board notes that based on the November 2019 VA examination, the Veteran is now service connected for complications from his diabetes, including diabetic nephropathy, currently evaluated at 60 percent, and bilateral peripheral neuropathy, evaluated at 10 percent each for the left and right lower extremities. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.