Citation Nr: 21066688 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-49 549 DATE: November 1, 2021 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus type II is denied. REMANDED Entitlement to service connection for carpal tunnel syndrome, right upper extremity, is remanded. Entitlement to service connection for carpal tunnel syndrome, left upper extremity, is remanded. FINDING OF FACT The Veteran's diabetes mellitus type II required only restricted diet and one or more daily injections of insulin during the period on appeal. 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 served on active duty in the United States Marine Corps from July 1968 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision. In his September 2017 VA Form 9, the Veteran requested a hearing before the Board, and such was scheduled for March 2021. The Veteran canceled his request for a hearing in January 2021. There are no additional requests for a hearing of record. The Board notes that the Veteran initially claimed entitlement to service connection for peripheral neuropathy in his bilateral upper extremities as secondary to diabetes mellitus. See June 2013 VA Form 21-526b. During the pendency of the appeal, consideration as to whether service connection may be granted for carpal tunnel syndrome in both upper extremities was also performed. In an August 2017 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to service connection for peripheral neuropathy in the bilateral upper extremities secondary to service-connected diabetes mellitus; accordingly, those issues are considered granted in full and are no longer on appeal. However, the AOJ continued to deny entitlement to service connection for carpal tunnel syndrome in an August 2017 Statement of the Case, and the Veteran has duly perfected an appeal that includes those issues. They will be discussed in the Remand section below. Increased Rating Entitlement to a rating in excess of 20 percent for diabetes mellitus type II is denied. The Veteran contends that he is entitled to a higher rating for his service-connected diabetes mellitus, type II. He is currently in receipt of 20 percent rating under Diagnostic Code 7913. 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). 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's 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. Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran's diabetes mellitus required only a restricted diet and one or more daily injections of insulin during the period on appeal. The Veteran was afforded a VA examination for his diabetes mellitus, type II, in March 2014, at which time the VA examiner found that the Veteran's disability was managed by prescribed insulin more than one injection per day. The examiner noted that the Veteran's diabetes mellitus (and complications of diabetes mellitus) impacts his ability to work to the extent that the Veteran has limitation with his ability to balance due to his lower extremity neuropathy and that he should not work in elevated locations, but that the Veteran did not require regulation of activities as part of medical management of his diabetes mellitus. See March 2014 VA examination report (dated April 2014). The record includes a Diabetes Mellitus Disability Benefits Questionnaire (DBQ) completed by the Veteran's primary care provider, K.B., M.D., in August 2014. Dr. K.B. answered "Yes" to the question of whether the Veteran requires regulation of activities as part of medical management of diabetes mellitus and noted as an example "avoidance of strenuous occupational/recreational activities with the intention of avoiding increased pain due to ulnar neuropathy/hypoglycemic episodes." The Board acknowledges that the definition of regulation of activities for VA purposes does not provide examples of how the Veteran must regulate his activities. See August 2014 DBQ. The Board notes, however, that a review of the Veteran's private treatment records as provided by Dr. K.B. does not reflect that the Veteran has actually been advised to avoid strenuous occupational/recreational activities and that, in fact, the Veteran's treatment records indicate that his provider encouraged diet and exercise to assist in control of his weight and diabetes. See January 2014 private treatment records. The Veteran was afforded another VA examination in July 2017 for his diabetes mellitus type II. During this examination, the VA examiner found that the Veteran's disability was managed by restricted diet, and that insulin was required more than one injection per day. Pertinently, the July 2017 VA examiner noted that the Veteran did not require regulation of activities as part of medical management of diabetes mellitus. The medical evidence of record is against a finding that regulation of activities was required during the period on appeal. No VA examiner has indicated that the Veteran's disability required regulation of activities as part of medical management of his diabetes mellitus. Additionally, as discussed above, a review of the Veteran's private treatment records does not demonstrate that the Veteran has been advised by a medical professional, including his primary care provider, to avoid strenuous occupational and recreational activities. The competent medical evidence of record indicates only that a restricted diet and one or more daily injections of insulin were necessary to control the Veteran's disability. Dr. K.B.'s indication that regulation of activities is required to manage the Veteran's diabetes is not supported by the other evidence of record, to specifically include the treatment records referenced above. As such, it carries little probative weight. Importantly, the Veteran has already been awarded separate disability ratings for bilateral upper extremity peripheral neuropathy as secondary to the Veteran's diabetes mellitus, type II. In sum, the preponderance of the evidence is against assigning a rating in excess of 20 percent for service-connected diabetes mellitus, type II, during the period on appeal. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the increased rating claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for carpal tunnel syndrome, right upper extremity, as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for carpal tunnel syndrome, left upper extremity, as secondary to service-connected diabetes mellitus, is remanded. As noted above, the Veteran has already been awarded service-connection for neuropathy of his upper extremities. However, the evidence demonstrates the presence of carpal tunnel syndrome in both upper extremities as well. The medical opinion evidence of record does not adequately address whether the Veteran's carpal tunnel syndrome is caused or aggravated by his diabetes mellitus. Indeed, although Dr. K.B. provided a positive nexus opinion in September 2014, such was not supported by any medical explanation or rationale. In contrast, the negative nexus opinions of record provided by a February 2015 examiner address causation, but do not address whether the Veteran's service-connected diabetes and/or peripheral neuropathies aggravated his carpal tunnel syndrome. On remand, addendum opinions should be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for a carpal tunnel syndrome examination. The examiner should review the record and take a history from the Veteran as to the progression of his disability. Upon review of the record, examination and interview of the Veteran, the examiner should respond to the following: Is it at least as likely as not that the Veteran's right or left upper extremity carpal tunnel syndrome was caused or aggravated by his service-connected diabetes, and/or diabetic neuropathy of the upper extremities? Please ensure to provide opinions addressing both causation and aggravation. All opinions should be supported with a medical explanation or rationale. 2. Then, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.