Citation Nr: 21068841 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 20-22 466 DATE: November 15, 2021 ORDER Entitlement to an increased rating of 40 percent, but no higher, for diabetes mellitus type II (DMII) with diabetic retinopathy, cataracts, and erectile dysfunction is granted since August 28, 2017. FINDING OF FACT Since August 28, 2017, the Veteran's DMII has required one or more daily injection of insulin, restricted diet, and regulation of activities (contemplated by the 40 percent rating); however, throughout the appeal period (since December 10, 2016) the evidence does not document episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations or at least twice a month visits to a diabetic care provider (required elements of the 60 percent and 100 percent ratings). CONCLUSION OF LAW The criteria for entitlement to an increased rating of 40 percent, but no higher, for DMII with diabetic retinopathy, cataracts, and erectile dysfunction have been met since August 28, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code (DC) 7913 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from February 1970 to November 1971. 1. Entitlement to an increased rating above 20 percent for DMII with diabetic retinopathy, cataracts, and erectile dysfunction Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's DMII with diabetic retinopathy, cataracts, and erectile dysfunction has been rated under DC 7913 at 20 percent since September 16, 2013. See December 2017 Codesheet; 38 C.F.R. § 4.119, DC 7913. In a November 2014 Rating Decision, the Agency of Original Jurisdiction (AOJ) denied an increased rating above 20 percent; the AOJ mailed a November 2014 Notification Letter informing the Veteran of his appeal rights, but he did not timely appeal and the November 2014 Rating Decision became final. On December 10, 2016, VA received a VA Form 21-526EZ, which initiated the current appeal period for an increased rating above 20 percent through the Veteran's contentions of worsening. Under DC 7913, a 20 percent rating is warranted for DMII: 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 DMII: requiring one or more daily injection of insulin, restricted diet, and regulation of activities (defined as "avoidance of strenuous occupational and recreational activities"). A 60 percent rating is warranted for DMII: 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 (maximum schedular) rating is warranted for DMII: 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. The January 2017 VA examiner found, in pertinent part, that: the DMII was managed by restricted diet; the Veteran was prescribed oral hypoglycemic agents; the Veteran did not require regulation of activities as part of medical management of DMII; and the Veteran had zero episodes of ketoacidosis and zero episodes of hypoglycemic reactions requiring hospitalization over the past 12 months. A Salem VAMC record dated August 28, 2017, documented that the Veteran was first started on insulin during that appointment. The October 2017 VA examiner found, in pertinent part, that: the Veteran required one injection of insulin per day; he required regulation of activities as part of medical management of DMII because, once on insulin, there is a risk for hypoglycemic episodes with strenuous activity causing illness; and the Veteran had zero episodes of ketoacidosis and zero episodes of hypoglycemic reactions requiring hospitalization over the past 12 months. In the January 2018 Notice of Disagreement, the Veteran contended that he met the 40 percent rating criteria because he had been prescribed insulin since October 2017. In the May 2020 VA Form 9, the Veteran contended that he met the 40 percent rating criteria because he started taking insulin in October 2017, he has a special diet, and he has been asked to exercise. In the November 2021 Brief, the Veteran's representative contended that a 60 percent rating was warranted because the Veteran: has dietary restrictions; takes daily medication, including alogliptin tablets and insulin glargine via insulin syringe; has frequent appointments for diabetes management, including ones on October 3, 2018, January 9, 2019, May 20, 2019, and December 2, 2019; has been instructed to maintain his dietary modifications and increase his physical activity and exercise as tolerated; and has non-compensable complications of his DMII including diabetic retinopathy, cataracts, and erectile dysfunction. Based on the evidence above, the Board finds that, since August 28, 2017, the Veteran's DMII has required one or more daily injection of insulin, restricted diet, and regulation of activities (contemplated by the 40 percent rating); however, throughout the appeal period (since December 10, 2016) the evidence does not document episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations or at least twice a month visits to a diabetic care provider (required elements of the 60 percent and 100 percent ratings). Specifically, the medical evidence is silent regarding regulation of activities for VA purposes until the October 2017 VA examiner opined that the Veteran being on insulin required avoidance of strenuous occupational and recreational activities; thus, because the earliest record documenting insulin use is when it was initially prescribed during the August 28, 2017, Salem VAMC appointment, the Board finds that this is the earliest date the 40 percent rating criteria were met. Further, the Board finds that higher ratings of 60 and 100 percent are precluded because the evidence fails to document episodes of ketoacidosis requiring hospitalization, episodes of hypoglycemic reactions requiring hospitalization, or at least twice a month visits to a diabetic care provider; accordingly, although he has complications that would not be compensable if separately evaluated (diabetic retinopathy, cataracts, and erectile dysfunction), higher ratings are unavailable for failure to meet other required elements of those higher ratings. See Salem VAMC record dated December 11, 2017 (noting one hypoglycemic episode, but not indicating that hospitalization was required; silent regarding any episodes of ketoacidosis requiring hospitalization); see also Salem VAMC records dated August 28, 2017, September 25, 2017, April 11, 2018, June 4, 2018, October 3, 2018, January 9, 2019, May 20, 2019, and December 2, 2019 (noting that the Veteran has had no hypoglycemic episodes; silent regarding any episodes of ketoacidosis requiring hospitalization). Thus, the Board grants a 40 percent rating, but no higher, since August 28, 2017. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.