Citation Nr: 21064078 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-10 910 DATE: October 19, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus is denied. FINDING OF FACT During the appeal period, the Veteran's type II diabetes mellitus required the use of an oral hypoglycemic agent and a restricted diet, but the need for regulation of activities was not demonstrated. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service in the U.S. Navy from August 1963 to July 1967, September 1969 to November 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which granted service connection for Diabetes Mellitus II and assigned a 20 percent rating effective July 29, 2015. In September 2019, the Board denied the Veteran's initial rating claim for diabetes mellitus. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (CAVC or the Court), which granted a Joint Motion for Remand (JMR) in January 2021. Consistent with the terms of the JMR, the Board remanded the claim to the AOJ in June 2021 to obtain updated VA treatment records and for a VA examination to assess the nature and severity of the Veteran's diabetes mellitus. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus In this case, the Veteran's type II diabetes mellitus is currently assigned a 20 percent disability rating pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent disability evaluation is assigned for diabetes mellitus requiring one or more daily injection(s) of insulin and a restricted diet; or an oral hypoglycemic agent and a restricted diet. A 40 percent disability evaluation is contemplated for diabetes mellitus requiring one or more daily injection(s) of insulin, a restricted diet, and regulation of activities. A 60 percent disability evaluation is warranted for diabetes mellitus requiring one or more daily injection(s) of insulin, a 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 evaluation is contemplated for diabetes mellitus 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 progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119. 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). Medical evidence is required to support this criterion. Specifically, a medical provider must indicate that the claimant's "diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity." Id. at 364. Although VA regulations under 38 C.F.R. §§ 4.7, 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. The rating criteria for diabetes are successive. See Camacho, 21 Vet. App. at 366. Successive criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). For example, the diagnostic code for diabetes mellitus (Diagnostic Code 7913) is successive as each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Camacho, 21 Vet. App. at 366. Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. Id. The Veteran maintains that his diabetes mellitus, type II is more disabling than reflected by the 20 percent rating he is currently assigned. However, the Board finds that an increased rating is not warranted because, while the requires oral medication and a restricted diet to manage his diabetes, he does not require regulation of activities. Additionally, his condition did not manifest with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. The Veteran underwent a VA examination in July 2021 for his diabetes. The VA examiner noted a diagnosis of diabetes mellitus II with an onset in 2015. With respect to treatment, he noted that the condition is managed with a restricted diet and prescribed oral hypoglycemic agents. However, he concluded that the Veteran does not require regulation of activities as a part of the medical management of the condition. The examiner also indicated that the Veteran visits his diabetic care provider for episodes of ketoacidosis less than twice per month and for episodes of hypoglycemia less than twice per month. Additionally, the examiner noted that the Veteran has had no hospitalizations for episodes of ketoacidosis or hypoglycemic reactions within the prior 12-month period. He also indicated that the Veteran has not had progressive unintentional weight loss and loss of strength attributable to diabetes. The examiner further noted that there are no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran's diabetes. In addition to this evidence, treating records reveal that the Veteran's diabetes is controlled with a restricted diet and medication. As of July 2019, the condition was classified as borderline by his physician and there is no indication in any of the treating records that the Veteran requires a regulation of activities due to diabetes mellitus. In light of this evidence, the Board finds that a rating in excess of 20 percent rating is not warranted for any part of the appeal period. The medical records reflect that the Veteran requires a restricted diet and medication to control his diabetes. Diagnostic Code 7913 provides a 20 percent rating for these symptoms. A higher rating is not warranted because the record does not reflect that the Veteran also requires regulation of his activities prescribed by a physician. Thus, the criteria for a 40 percent rating have not been met. Given that provisions for a 40 percent rating are directly incorporated into the criteria for 60 and 100 percent ratings, it follows that as the requirements for a 40 percent rating are not met, the next higher ratings under Diagnostic Code 7913 do not apply. Tatum v. Shinseki, 23 Vet. App. at 152 (2009). Accordingly, given the evidence of record, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran's diabetes during the appeal period. The Board has also considered whether a separate evaluation is warranted for any compensable complications arising from the Veteran's diabetes pursuant to Diagnostic Code 7913. In this regard, the Board notes that treating records note the possibility that the Veteran experiences neuropathy related to diabetes or alcohol use. He was advised to follow up with primary care for a workup in July 2019, but there is no indication that the Veteran pursued this recommendation and there is no formal diagnosis of neuropathy on record. Furthermore, the July 2021 VA examiner concluded that the Veteran's diabetes mellitus does not contribute to any other medical conditions. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess for 20 percent for type II diabetes mellitus and an additional separate rating for any condition associated with diabetes mellitus is not warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.