Citation Nr: 21066953 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-67 549 DATE: November 3, 2021 REMANDED Entitlement to a rating in excess of 20 percent for diabetes mellitus, type 2 is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1969 to November 1971. In June 2021, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans' Appeals (Board) virtual hearing. A transcript of the proceeding is of record. 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type 2 is remanded. Upon review of the evidence of record, the Board finds remand is warranted for additional medical examination and opinions, and to obtain outstanding VA treatment records. The Veteran's diabetes mellitus, type 2 (hereinafter diabetes), is rated under 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. DC 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 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. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). 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). A review of the record reveals conflicting medical evidence regarding whether the Veteran requires a reduction in activities, and if he does, whether it is due to diabetes or a different disability. Additionally, there is evidence of potential complications due to diabetes that are not part of the criteria used to support a 100-percent evaluation, namely a heart disability and cerebral vascular disease. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019) (VA's duty to maximize benefits includes consideration of schedular rating concepts, including secondary service connection); Bailey v. Wilkie, 33 Vet. App. 188, 198-203 (2021) (38 C.F.R. § 3.155(d)(2) requires VA to recognize, develop, and adjudicate secondary service connection when reasonably raised in increased ratings claims, even if claim was received after March 24, 2015). The Veteran attended VA diabetes examinations in June and December 2016. The June 2016 examiner noted the Veteran must regulate his activities, writing "the veteran must regulate sustained physical activities . . . due to possible hypoglycemic episodes". See June 2016 examination report, page 1. The December 2016 examiner indicated the Veteran did not require regulation of activities as part of medical management of his diabetes, but did have progressive loss of weight and strength. The Agency of Original Jurisdiction did not attempt to reconcile these conflicting opinions by obtaining an addendum opinion or opinions. Adding to the lack of clarity, is a recent medical record offering differing causes of regulation of activity. In July 2021, the Veteran reported having ongoing difficulty with activity and is getting more short of breath when he carries in groceries and does a small task. In the assessment and plan portion of the July 2021 treatment record, the clinician listed four issues, including shortness of breath and diabetes: "1 shortness of breath. Again still concerned that this is the patient's heart given his diabetes and his cerebral vascular disease. Have asked him to limit his activity do not feel he should do anything strenuous . . . 2 diabetes continues to improve again feel like he should limit his activity based on his cerebral vascular disease and possible underlying heart issues" See July 14, 2021 treatment record (emphasis added). The July 2021 treatment record recommends regulation of activities, but does not make clear if this is due to diabetes, other issues, or both. Furthermore, the clinician's statements distinguished between the Veteran's diabetes, cerebral vascular disease and "possible underlying heart issues", but also raises the possibility that there is a relationship between diabetes and a heart disability, and diabetes and cerebrovascular disease. Given VA's duty to maximize benefits and the lack of clarity regarding these relationships, and regulation of activities, the Board finds remand is warranted for additional medical opinions. Additionally, the July 2021 clinician noted "Again still" being concerned, suggesting prior treatment for shortness of breath. Unfortunately, there is a gap in VA treatment records between November 2020 and July 2021. In the months prior to November 2020, the Veteran reported denied having shortness of breath. See VA treatment records from March 3, 2020 (no shortness of breath or cough) and October 29, 2020 (no new or worsening cough or shortness of breath). Therefore, remand is also warranted to obtain outstanding treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period since November 2020. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected diabetes. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, including whether there has been a change in signs or symptoms at any point since June 2015 (one year prior to filing his claim). The examiner must specifically address: a) Whether it is at least as likely as not the Veteran's diabetes required and/or requires regulation of activities? b) Whether a heart disability is at least as likely as not proximately due to service-connected diabetes? c) Whether a heart disability is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected diabetes? d) Whether the Veteran's cerebrovascular disease is at least as likely as not proximately due to service-connected diabetes? e) Whether the Veteran's cerebrovascular disease is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected diabetes? H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.