Citation Nr: 21067804 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 12-22 519 DATE: November 5, 2021 ORDER A rating in excess of 20 percent for type II diabetes mellitus (DM) is denied. FINDINGS OF FACT 1. The Veteran had active service between August 1970 and August 1972. 2. DM has been treated through a restrictive diet, prescribed oral hypoglycemic agents, but no restriction of activities or insulin. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for DM have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.120, Diagnostic Code (DC) 7913 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a procedural matter, in February 2015, June 2017, May 2018, and March 2020, the claim was remanded by the Board for additional development to include obtaining a VA examination to assess the current status of DM and ensuring that the Veteran received appropriate notice of the scheduling of the examination. The case has now been returned to the Board for further appellate action. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. DM has been rated under DC 7913. In order to warrant a higher rating, the medical evidence must show that treatment of DM requires insulin, a restricted diet, and regulation of activities. 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). 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). Turning to the medical evidence, the Veteran requires a restricted diet to treat DM. To that end, a June 2012 private clinician asserted that DM required a restricted diet. In an August 2021 examination, the Veteran reported that he was placed on dietary restrictions and seen by an endocrinologist, who initially prescribed Metformin. The August 2021 examiner affirmed that DM required management by a restrictive diet. Accordingly, treatment includes oral medication and a restrictive diet. As to regulation of activities, in an April 2011 VA examination, the examiner found that the Veteran was mostly couchbound and avoided strenuous activity. However, the examiner offered that the Veteran's avoidance of strenuous activities was due to multiple physical injuries experienced as a result of a building collapse rather than DM and opined that he did not have to avoid strenuous activity in order to prevent hypoglycemic reactions. In a subsequent September 2015 primary care note, the Veteran reiterated that he was in a building collapse in 1978 and as a result sustained injuries to the neck, back, shoulder, and sternum, walked with a cane, and was in chronic pain. While the clinician diagnosed DM, he did not find that DM required the Veteran to avoid strenuous occupational or recreational activities due to DM. In a January 2021 examination, the Veteran said that DM resulted in fatigue and a loss of strength. The examiner noted that the Veteran could not walk or stand unassisted but found that these restrictions were secondary to diabetic peripheral neuropathy, as well as knee pain and weakness. Ultimately, the examiner found that the Veteran did not require regulation of activities as part of the medical management of DM. In order to receive a higher evaluation, DM must require regulation of activities for the purpose of avoiding hypoglycemic episodes. However, the examiners and clinicians have consistently found that the Veteran's physical limitations were not the result of DM nor did they opine that regulation of activities was required to avoid hypoglycemic episodes. Therefore, the medical evidence does not support a higher rating on that basis. Similarly, the record does not reflect that the Veteran required insulin to treat DM. In this regard, April 2011 and August 2021 examiners determined that DM was treated with prescribed oral hypoglycemic agents but did not required insulin. The clinical records further support a finding that the Veteran used oral medication but not insulin to treat DM. As such, the medical evidence does not support a higher rating on that basis. Based on the above, a rating in excess of 20 percent for DM is not warranted. In this regard, the record demonstrates that DM is treated with an oral hypoglycemic agent and a restricted diet but not insulin. Moreover, his physical limitations were found not to be related to DM nor does he required regulation of activities in treating DM. Accordingly, the medical evidence does not support a rating in excess of 20 percent. The Board has considered statements made by the Veteran and his family regarding the current severity of his DM. Lay witnesses are competent to report symptoms because this requires only personal knowledge as it comes to them through their senses. However, they are not competent to identify specific levels of disability of this disorder according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's DM has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the VA examinations and clinical records) directly address the criteria under which his disability is evaluated. Moreover, as the clinicians have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the subjective evidence of complaints of increased symptomatology provided by the Veteran and his family, and the appeal is denied. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the Veteran's DM warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.