Citation Nr: 21063183 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 14-33 117 DATE: October 13, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is denied. FINDING OF FACT The Veteran's diabetes mellitus does not require one or more daily injections of insulin, a restricted diet, and regulation of activities. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.119, DC 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to September 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a September 2016 hearing before the Board; a transcript of the hearing is associated with the claims file. In August 2021, the Board mailed the Veteran a letter informing him that the VLJ who had conducted his September 2016 hearing had retired but that the Veteran had a right to request another optional Board hearing before another VLJ. The letter also said that if the Veteran did not respond to the letter within 30 days, the Board would assume the Veteran did not want another hearing and proceed accordingly. More than 30 days have passed since the letter was mailed to the Veteran and the Board has not received a response or request for another hearing. Accordingly, the Board will adjudicate the claims on appeal based on the evidence of record. This matter was previously before the Board in June 2017, when it was remanded for additional evidentiary development. In accordance with the remand directives, outstanding VA treatment records and Social Security Administration (SSA) records were obtained, and the Veteran was afforded a VA examination. The matter has now returned to the Board for adjudication. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus By way of history, the Veteran was granted entitlement to service connection for diabetes mellitus, type II in a January 2009 rating decision, evaluated as 20 percent disabling effective September 2008. The Veteran filed an increased rating claim in March 2015. A November 2013 rating decision continued the Veteran's 20 percent disability rating. In June 2017, the Board remanded the Veteran's claim for VA treatment and Social Security Administration (SSA) records as well as a VA examination. The requested records have been added to the Veteran's claims file and the Veteran was afforded a VA examination in June 2021. The Veteran asserts entitlement to a disability rating in excess of 20 percent for his service-connected diabetes mellitus, type II. The Veteran's diabetes mellitus is rated as 20 percent disabling from September 2008 under Diagnostic Code (DC) 7913. The Veteran's diabetes mellitus type II is rated under Diagnostic Code 7913. Effective December 10, 2017, VA revised the criteria for rating disabilities of the endocrine system (including diabetes mellitus). 82 Fed. Reg. 50806 (Nov. 2, 2017). Because the current increased rating claim for diabetes mellitus type II stems from claim that was filed in March 2015, the Board is required to consider the claim in light of both the former and revised schedular criteria in order to determine whether a higher rating is warranted for that disability. Here, however, the former and revised criteria do not differ in regard to the symptoms in this case. Under the version of Diagnostic Code 7913 in effect prior to December 10, 2017, diabetes mellitus is rated as follows. A 10 percent rating is warranted for diabetes mellitus that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring 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 (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes mellitus 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. A 100 percent rating is warranted for diabetes mellitus requiring 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. Note (1) states that compensable complications of diabetes are to be evaluated separately, while noncompensable complications are to be considered part of the diabetic process under Diagnostic Code 7913. Under the version of Diagnostic Code 7913 which became effective on December 10, 2017, diabetes mellitus is rated as follows. A 10 percent rating is warranted for diabetes mellitus that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin and restricted diet; or, oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes mellitus requiring 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 for diabetes mellitus requiring 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. Note (1) states that compensable complications of diabetes are to be evaluated separately, while noncompensable complications are to be considered part of the diabetic process under Code 7913. Within the criteria for a 100 percent rating, "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction 'and' is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). With regard to the Veteran's claim, the Board notes that the applicable rating criteria (under both versions of the regulation) provide that a disability rating in excess of 20 percent is not assigned unless the condition requires "one or more daily injection[s] of insulin, restricted diet, and regulation of activities[.]" See 38 C.F.R. § 4.119, DC 7913; see also Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013) (providing that the 40 percent disability rating for diabetes requires that each of its three elements be demonstrated). The Veteran has undergone VA examinations related to his diabetes in September 2013, July 2016 and June 2021. No VA examiner found that the Veteran's diabetes mellitus required the combination of treatments described in the 40 percent rating criteria. See September 2013, July 2016 and June 2021 VA Examination Reports. All VA examiners reported that the Veteran's diabetes requires oral hypoglycemic agents and is managed by a restricted diet but does not require regulation of activities. The Veteran's treatment records associated with the claims file also do not demonstrate that the Veteran must avoid strenuous occupational and recreational activities due to his diabetes. Further, the evidence does not indicate that the Veteran has reported that he must avoid strenuous occupational and recreational activities due to his diabetes. In fact, in a January 2019 VA treatment record, the Veteran reports that his blood sugar is fairly well controlled. Accordingly, the Board finds that the evidence of record demonstrates that the Veteran's diabetes mellitus treatment does not require regulation of activities. Thus, under both versions of Diagnostic Code 7913 a rating in excess of 20 percent for diabetes mellitus is not warranted. 38 C.F.R. § 4.119, DC 7913. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. C. Slaughter, 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.