Citation Nr: 21005012 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-36 839 DATE: January 28, 2021 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus type-II prior to January 28, 2019 is denied. Entitlement to a rating in excess of 60 percent for diabetes mellitus type-II from January 28, 2019 to August 15, 2020 is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus type-II since August 16, 2020 is denied. FINDINGS OF FACT 1. For the period on appeal prior to January 28, 2019, management of the Veteran’s service-connected diabetes mellitus type II required one or more daily injections of insulin and a restricted diet; however, it did not require regulation of activities. 2. From January 28, 2019 to August 15, 2020, the Veteran’s service-connected diabetes mellitus type II did not manifest with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year, or weekly visits to a diabetic care provider. 3. For the period since August 16, 2020, management of the Veteran’s service-connected diabetes mellitus type II required one or more daily injections of insulin and a restricted diet; however, it did not also require regulation of activities. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for diabetes mellitus type-II prior to January 28, 2019 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.119, Diagnostic Code 7913. 2. The criteria for an evaluation in excess of 60 percent for diabetes mellitus type-II from January 28, 2019 to August 15, 2020 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.119, Diagnostic Code 7913. 3. The criteria for an evaluation in excess of 20 percent for diabetes mellitus type-II since August 16, 2020 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1967 to July 1970, including in the Republic of Vietnam. His decorations include the Purple Heart and Combat Infantryman Badge. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision denying an increased evaluation for diabetes mellitus, issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). A January 2019 Board decision denied the Veteran’s claim of entitlement to a rating in excess of 20 percent for type II diabetes mellitus. The January 2019 Board decision was appealed to the United States Court of Appeals for Veterans Claims (Court). While that appeal was pending before the Court, the RO issued an April 2019 rating decision granting an increased staged rating for diabetes mellitus of 60 percent effective January 28, 2019. The RO also granted service connection and assigned separate ratings for amputation and a scar of the right fourth toe from January 28, 2019. In November 2019, the Court issued a Joint Motion for Remand (JMR) that vacated the January 2019 Board decision and remanded the increased rating claim for diabetes mellitus type-II for readjudication. In April 2020 the Board remanded the issue for additional development. While the Board remand was pending, a rating decision issued by the RO in September 2020 decreased the evaluation for diabetes type II from 60 percent to 20 percent effective August 16, 2020. The reduction has not yet been appealed and the Board does not have jurisdiction over the propriety of the reduction. The November 2019 JMR directed the Board to assess whether the Veteran’s toe removal was due to his diabetes mellitus and whether a separate disability was warranted. As the April 2019 rating decision granted service connection for the amputation and scar of the toe as secondary to diabetes and assigned separate ratings, the benefit sought has been granted and the issue of entitlement to service connection for the toe disability is no longer before the Board. The JMR also directed the Board to address whether a new VA examination for diabetes was warranted. The April 2020 Board remand addressed this question and did remand for a new examination. Thus, the JMR directives have been satisfied and the Board may proceed to adjudication of the appeal. Increased Rating The Veteran submitted a claim seeking an increased rating for diabetes mellitus on January 4, 2012, which marks the beginning of the appeal period before the Board. During the appeal period before the Board, the Veteran’s diabetes mellitus is rated under Diagnostic Code 7913: 20 percent disabling from January 4, 2012 to January 27, 2019, 60 percent disabling from January 28, 2019 to August 15, 2020, and 20 percent disabling since August 16, 2020. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Under 38 C.F.R. § 4.119, Diagnostic Code 7913, diabetes mellitus type II requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated 20 percent disabling. Diabetes mellitus type II requiring insulin, restricted diet, and regulation of activities, is rated 40 percent disabling. Diabetes mellitus type II requiring 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, is rated 60 percent disabling. Diabetes mellitus type II 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, is rated 100 percent disabling. Id. The rating schedule in Note 1 also instructs to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. Pursuant to Note 1 of the code section, the Veteran is currently assigned separate ratings for the following complications of diabetes mellitus: diabetic nephropathy, peripheral neuropathy of the bilateral lower extremities, chronic microangiopathy of both lower extremities, erectile dysfunction, amputation of the right fourth toe secondary to diabetes mellitus, erectile dysfunction secondary to diabetes mellitus and a scar associated with amputation. The Veteran has not appealed the rating assigned for these separately service-connected disabilities and these matters are not currently on appeal. The criteria for the progressively increasing ratings for diabetes are stated in the conjunctive rather than the disjunctive (i.e., each level of increase in the rating requires that additional criteria to those for the lower rating must be met to warrant the increase). See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). Entitlement to a rating in excess of 20 percent for diabetes mellitus type-II prior to January 28, 2019 The Veteran contends that the severity of his diabetes mellitus type II is not accurately represented by the assigned rating for the initial period on appeal. In order to warrant an increase of the disability evaluation to 40 percent, the Veteran’s diabetes mellitus must require the regulation of activities. Regulation of activities is defined as prescribed or advised avoidance of strenuous occupational and recreational activities. This criterion requires competent medical evidence. Camacho, 21 Vet. App. at 364-65; 61 Fed. Reg. 20,440, 20,466 (May 7, 1996) (defining “regulation of activities,” as used by VA in Diagnostic Code 7913). During this stage the Veteran was afforded VA examinations to evaluate the severity of his diabetes mellitus type II in August 2012, August 2013, July 2014, and March 2015. More specifically, the August 2012 examiner found that treatment for the condition required one insulin injection daily and oral hypoglycemic agents but did not require restricted diet or regulation of activities. A VA Physician Note from October 2012 documents VA physician’s assistant, F.M., stating: “[the Veteran] is on insulin and also has dietary restrictions as well as exercise, due to his diabetes.” A review of the VA treatment records from this stage indicates that F.M. was the Veteran’s primary care practitioner. VA treatment records on the Veteran’s initial treatment following his diagnosis of diabetes show that he was prescribed exercise to attempt to lose weight. Throughout large portions of the appeal period the Veteran participated in regular modified aquatic exercise sessions; these appear to be physical therapy prescribed for generalized leg pain. See, e.g., November 2013, September 2014, August 2018 VA treatment records. In an April 2013 statement in support of the Veteran’s claim, his representative stated that his doctor required regulation of activities. A VA examination in August 2013 indicated that regulation of activities was required. Treatment also included restricted diet, daily insulin and prescribed oral hypoglycemics. However, as an example of how the Veteran must regulate his activities the examiner listed “exercise program daily, regular appointments with dietician monthly/every other month.” Conversely, the July 2014 VA examination documented the need for restricted diet, prescribed oral hypoglycemics and insulin injections once a day without the need for regulation of activities as part of the medical management for the condition. In October 2014, F.M. wrote, “[the Veteran] often has to restrict his exercise regimen in attempt to prevent hypoglycemia due to insulin that he takes for his DM management.” No example is given in the one sentence opinion for how or when the Veteran’s exercise regimen had to be restricted. The Veteran argues that this treatment record shows he was prescribed regulation of activities. Similarly, the March 2015 VA examination report acknowledged the use of prescribed oral hypoglycemics and insulin, with no requirement for regulated activities to control the symptoms. The examiner explained that the Veteran “does not have activity restrictions secondary to diabetes. [He] states he can’t mow the lawn or walk for long periods of time because of pain in his feet and legs. This is not secondary to diabetes. [He] does not have a history of hypoglycemia. In fact, exercise is recommended for [his] diabetes to help with weight loss.” A May 2015 VA treatment record written by F.M. states that the Veteran needed to be more aggressive with diet and exercise to manage his diabetes. In his September 2015 VA Form 9, the Veteran asserted that he does have to regulate his activities, pointing to the statements from F.M. He elaborated, “I do not mow the lawn or carry wood as examples of regulation of activities.” He stated he swims regularly for exercise and highlights that his leg and foot pain is bilateral peripheral neuropathy secondary to diabetes. The Veteran submitted a diabetes Disability Benefits Questionnaire (DBQ), dated September 2015, completed by private physician Dr. Y. M. The DBQ documented restricted diet, prescribed oral hypoglycemics, and 1 prescribed insulin injection per day. Dr. Y.M. endorsed required regulation of activities. Notably, the DBQ itself provided: “For VA purposes, regulation of activities can be defined as avoidance of strenuous occupational and recreational activities with the intention of avoiding hypoglycemic episodes.” However, the example Dr. Y.M. gave was only encouragement to exercise and diet management. An October 2015 VA treatment record notes that exercise is limited by pain so he uses the pool twice weekly. He was encouraged to continue swimming and increase walking as tolerated. Medical evidence shows that the Veteran has consistently required one or more daily injections of insulin and restricted diet. The question for this stage, then, is whether the Veteran’s diabetes mellitus requires regulation of activities (avoidance of strenuous occupational and recreational activities with the intention of avoiding hypoglycemic episodes). The evidence presented in support of required regulation of activities is that the Veteran has been told by medical providers to exercise (swimming, walking) and manage his diet. While the examiners in August 2013 and September 2015 reported a requirement for regulation of activities, it is clear from the examples given that they are prescribing more activity (exercise) rather than prescribing avoidance of strenuous activity in order to prevent the onset of hypoglycemic episodes. The Veteran’s self-initiated discontinuation of mowing the lawn or carrying wood due to leg pain is related to his diabetes mellitus in that it is a result of the leg pain symptoms of his diabetic peripheral neuropathy. However, these symptoms are already contemplated in the separate ratings assigned for peripheral neuropathy of the bilateral lower extremities. Moreover, limiting activities to avoid pain is not avoidance of activities in order to prevent the onset of hypoglycemic episodes. The Board finds that none of the evidence presented to support regulation of activities actually meets the definition for VA purposes because it does not show avoidance of strenuous occupational and recreational activities with the intention of avoiding hypoglycemic episodes. Camacho. Conversely, the Board finds that the examination results from August 2012, July 2014 and March 2015 VA examinations to be probative, as their conclusions that the Veteran does not require regulation of activities are consistent with the evidence of record showing that he was actually prescribed more exercise. On review, the preponderance of the evidence is against a finding that regulation of activities was medically required during this stage. The DC 7913 criteria are successive, and regulation of activities is a distinct criterion required for a 40 percent rating. A rating in excess of 20 percent is denied prior to January 28, 2019. Entitlement to a rating in excess of 60 percent for diabetes mellitus type-II from January 28, 2019 to August 15, 2020 The Veteran contends that his disability has been more severe than the currently assigned rating and that he is entitled to a rating higher than 60 percent from January 28, 2019 to August 15, 2020. This assertion is not supported by the evidence. The next and highest rating for diabetes mellitus for this stage is 100 percent disabling. The rating criteria require: 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 rated. From January 28, 2019 to August 15, 2020, the Board finds that the probative evidence does not supports a rating in excess of 60 percent for the Veteran’s diabetes mellitus, type II with hypertension. This is so because the statutory requirements for episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to diabetic care provider plus progressive loss of weight with other compensable complications have not been met. Visits to diabetic care provider During this stage (and within one year prior), the evidence does not show episodes of ketoacidosis or hypoglycemic reactions requiring weekly visits to a diabetic care provider. Home glucose readings show no hypoglycemia throughout. A September 2018 diabetes note showed a report of one episode of hypoglycemia since the last visit. The Veteran was reminded of the importance of re-checking SMBG after treating. Follow-up was scheduled for two weeks after this appointment. In August 2018, October 2018 and November 2018, the Veteran denied hypoglycemia. A December 2018 VA diabetic care treatment record stated that glucose meter review showed no hypoglycemia. A March 2019 VA nutrition treatment record stated that the Veteran had no recent hypoglycemia. An April 2019 VA Examination documented a restricted diet, prescribed hypoglycemics, and insulin, with no requirement for regulation of activities. Frequency of diabetic care was less than twice monthly, and the Veteran’s diabetic complications were attributed to uncontrolled type-II diabetes and peripheral vascular disease. The rating criterion of episodes of ketoacidosis or hypoglycemic reactions is not met by evidence of weekly visits to a diabetic care provider. Hospitalizations During this stage (and within one year prior), the Veteran was hospitalized three times. However, none of the hospitalizations were due to episodes of ketoacidosis or hypoglycemic reactions. A private hospital discharge summary from June 2018 documented recurrent diabetic toe infection on the right foot along with acute right lower extremity cellulitis in the setting of poorly controlled diabetes mellitus type-II. Diagnoses included poorly controlled diabetes mellitus, metabolic encephalopathy, acute renal failure and lower extremity cellulitis. The discharge summary noted elevated blood sugar A1c measured at 7.7 in the early part of the hospital course. A seven-day course of intravenous antibiotics was administered in an attempt to contain the diabetes-induced infection. The Veteran was discharged with a recommendation to control his diabetes with only insulin, due to his kidney condition. The Veteran’s right fourth toe was amputated in early September 2018 as a result of complications associated with his diabetes. In May 2019 the Veteran was admitted to a private hospital with a left second toe ulcer and necrosis accompanied by redness and swelling of the leg. The evidence of record confirms three hospitalizations between June 2018 and May 2019 for serious complications associated with the Veteran’s advancing diabetes mellitus. However, those admissions were caused by left and right foot toe necrosis, infection, pain and ultimately one amputation due to the Veteran’s diabetes. Again, these complications of diabetes mellitus are compensated via separate ratings. None of those hospitalizations were required by episodes of ketoacidosis or hypoglycemia as required for a rating in excess of 60 percent. As to the Veteran’s descriptions of worsening symptoms, he has not actually asserted that the three hospitalizations were due to episodes of ketoacidosis or hypoglycemia. The preponderance of the evidence is against assigning a rating in excess of 60 percent during this stage and the increased rating claim is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus type-II since August 16, 2020 A rating decision issued by the RO in September 2020 reduced the Veteran’s diabetes mellitus rating to 20 percent effective August 16, 2020. Again, the reduction has not yet been appealed and the Board does not have jurisdiction over the propriety of the reduction. To warrant the next higher rating of 40 percent, the Veteran’s diabetes mellitus type-II must require one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as prescribed or advised avoidance of strenuous occupational and recreational activities. This criterion requires competent medical evidence. Camacho; 61 Fed. Reg. 20,440, 20,466. An in-person VA examination was provided on August 16, 2020. The examination report showed management of diabetes by restricted diet and more than one insulin injection per day. There was no requirement for regulation of activities as part of medical management of diabetes. The examiner also provided a medical opinion based on a review of the record. The examiner was asked to ascertain the date, if any, in the record where it is factually ascertainable that the veterans service-connected diabetes mellitus increased in its severity or worsened to such that his symptoms and disability picture met the criteria for a rating in excess of 20 percent under 38 C.F.R. 4.119, diagnostic code 7913. [sic] The examiner answered: On 5/21/2018 he went from mixed basal/bolus insulin twice a day to basal/bolus insulin regimen with splitting his basal to twice a day with premeal rapid acting insulin three times a day, which would mean a total of 5 insulin injections a day. His total insulin requirement greatly increased this is a good example of increased severity. While this opinion shows a marked increase of insulin prescription, it does not address the criteria for a rating higher than 20 percent under DC 7913, as the 20 percent rating criteria already requires one or more daily injections of insulin. The opinion does not address the requirements of restricted diet and regulation of activities required for a 40 percent rating. No medical evidence has been submitted to show requirement for regulation of activities as part of medical management of diabetes during this stage. As this element requires medical evidence under Camacho, the criteria for a rating in excess of 20 percent is not warranted. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Allen M. Kerpan 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.