Citation Nr: 21069673 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-02 785 DATE: November 19, 2021 ORDER For the appellate period prior to January 14, 2015, entitlement to an initial rating higher than 20 percent for diabetes mellitus Type II is denied. FINDING OF FACT Prior to January 14, 2015, the Veteran's diabetes mellitus, type II, required the use of insulin injections and a restricted diet, but not a regulation of activities. CONCLUSION OF LAW For the appellate period prior to January 14, 2015, the criteria for an initial rating higher than 20 percent for diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to March 1970, including service in the Republic of Vietnam. His service awards and decorations include the Purple Heart and Four Bronze Stars. A Board video-conference hearing was held in April 2018 before the undersigned Veterans Law Judge, and a transcript of the hearing has been associated with the record and reviewed. In March 2019, the Board remanded the appeal for further development. Thereafter, in an October 2020 decision, the Board denied entitlement to an initial rating higher than 20 percent for diabetes mellitus, type II prior to January 14, 2015, and granted a 40 percent rating thereafter. The Veteran timely appealed the Board's denial of a rating higher than 40 percent prior to January 14, 2015, to the United States Court of Appeals for Veterans Claims (Court), and by a June 2021 Order, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded this portion of the Board's October 2020 decision. The case has since returned to the Board for further appellate review. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Claim Applicable Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2020). 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 (2020). Initial Rating for Diabetes Mellitus Prior to January 14, 2015 The Veteran seeks an initial increased disability rating for diabetes mellitus, type II, which is currently rated as 20 percent disabling under Diagnostic Code 7913. See 38 C.F.R. § 4.119, Diagnostic Code 7913. Pursuant to Diagnostic Code 7913, diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet is assigned a 20 percent disability rating. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is assigned a 40 percent disability rating. Diabetes mellitus requiring 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, is assigned a 60 percent disability rating. 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 either progressive loss of weight and strength or complications that would be compensable if separately evaluated, is assigned a 100 percent disability rating. See 38 C.F.R. § 4.119, Diagnostic Code 7913. The term "regulation of activities" is defined in the rating criteria for a 100 percent disability rating under Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities." Id. Although not specified in the rating criteria, the Board finds that this definition also applies to the "regulation of activities" discussed in the 40 percent and 60 percent disability ratings under Diagnostic Code 7913. Additionally, the Board notes that medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). For example, the Court in Camacho explained that an opinion from an employer that a Veteran should not drive was not based on an individualized assessment of the Veteran or constitute competent medical evidence that the diabetes actually made it unsafe to drive. Camacho at 365. The Court noted that VA's intention in drafting the current version of the Diagnostic Code had been to ensure that the rating reflected how well diabetes had been controlled. Id. at 363. Further, the Court observed that the VA Clinician's Guide instructed examiners to "[i]include any restrictions of diet or physical activities and any weight loss." Id. at 364. Just as with restrictions in diet, the essential characteristic of regulation of activity under DC 7913 is medical instruction. Because of the successive nature of the rating criteria for diabetes, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Stated another way, if a component is not met at any one level, a veteran can only be rated at the level that did not require the missing component. Id. The Veteran is competent to report his observable diabetes symptoms, as well as the measures he undertakes upon his own initiative to mitigate or control them. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, a showing that regulation of activities is medically necessary for control of diabetes requires medical evidence, not merely lay evidence. See Camacho at 363. Analysis Turning to the record, private treatment notes from June 2011 to January 2012 reflect that the Veteran had been diagnosed without complications, and at that time the Veteran denied experiencing diabetes symptoms. The Veteran underwent VA diabetes mellitus examination in April 2012. The examiner noted that the Veteran's diabetes was managed through a restricted diet and a prescribed oral hypoglycemic agent. The Veteran was negative for loss of strength and unintentional weight loss attributable to diabetes, as well as diabetes-related disorders. He denied any hospitalizations due to ketoacidosis episodes or hypoglycemia. On examination, the Veteran had no scars related to treatment for diabetes or complications of the disease. The Veteran was negative for diabetic retinopathy. The examiner determined that management of the Veteran's diabetes did not require regulation of activities, and he visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month. The examiner concluded that the Veteran's diabetes mellitus did not impact his ability to work. Private treatment notes dated January 2013 reflect an assessment of diabetes mellitus without complications. The Veteran denied experiencing diabetes symptoms. May 2013 private progress notes reflect a diagnosis of insulin-dependent diabetes mellitus, with peripheral vascular disease. His medication regimen included taking two oral hypoglycemics. Although the Veteran denied experiencing other diabetes related symptoms at that time, the physician noted that the Veteran's hypertension was a concurrent health problem. In July 2013, a VA caregiver recommended physical activity to help control the Veteran's blood glucose levels. In August 2013, the Veteran reported that while on vacation the previous week, he experienced hypoglycemic symptoms with elevated blood glucose levels. He noted that he was noncompliant with his diet at that time. A VA physician encouraged the Veteran to return to his diet and exercise as tolerated. Treatment continued with an oral hypoglycemic agent and insulin. VA treatment notes dated October 2013 reflect that the Veteran was taking up to four insulin injections per day. It was noted that the Veteran continued to work on increasing physical activity, but he was not exercising regularly. He was advised to monitor his blood glucose level closely and check it prior to engaging in any activity. During a December 2013 private outpatient appointment, the Veteran continued to take an oral hypoglycemic and insulin injections. He denied any diabetes related symptoms. In January 2014, the Veteran's VA endocrinologist, M.K., M.D., noted that the Veteran was taking up to four insulin injections per day, that the Veteran had changed his diet, and that he performed "physical activity 2-3 hours per week." He denied having any hypoglycemic episodes. M.K. encouraged the Veteran to increase physical activity, including going to the gymnasium, to help regulate his blood glucose levels. See VA Endocrinology Consultation dated January 29, 2014. VA treatment notes dated February 2014 reflect the Veteran's report that he went to the gymnasium for 30 minutes four times that week. The Veteran was encouraged to continue physical activity as part of a weight management program, and to increase physical activity to help lower his insulin dosage. In March 2014, the Veteran told a VA clinician he found it difficult to increase physical activity due to knee pain but that he was doing stationery and weight exercises. He denied episodes of hypoglycemia. During a VA outpatient appointment in April 2014, the Veteran said he had hypoglycemia "once or twice" since his last visit in March but denied any severe hypoglycemic episodes. The Veteran was taking up to four injections of insulin per day. He said he worked out 60 to 90 minutes three times per week. The Veteran was afforded a VA examination in June 2014. The examiner reported that the Veteran managed his diabetes mellitus through restricted diet, a prescribed oral hypoglycemic agent, and insulin injections, noting that the Veteran's diabetes mellitus was under poor control at that time. The VA examiner determined that management of the Veteran's diabetes required no regulation of activities. He did not visit his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month and did not experience episodes of ketoacidosis or hypoglycemic reactions that required hospitalization over the past 12 months. Additionally, the examiner noted that the Veteran had no progressive unintentional weight loss or loss of strength attributable to diabetes mellitus. On examination, the Veteran had diabetic peripheral neuropathy. He was negative for scars related to conditions or treatment of conditions related to diabetes. The examiner concluded that neither the Veteran's diabetes nor complications thereof impacted his ability to work. See VA diabetes mellitus examination report dated June 9, 2014. During a VA outpatient visit in July 2014, the Veteran reported that he was going to a gymnasium a few times each week. Notably, his VA endocrinologist noted "I requested that he enhance his physical activity level as tolerated." See VA Endocrinology Consultation M.K., M.D. dated July 30, 2014. August 2014 VA progress notes reflect that the Veteran reported having gone to a gymnasium two days for upper body work outs. The Veteran was praised for weight loss, which he attributed to dietary changes and outdoor activity. He denied any hypoglycemic episodes. In September 2014, the Veteran was taking up to four insulin injections per day and he was again encouraged to increase "physical activity as tolerated" as well as limiting meal portion sizes. During a December 2014 VA outpatient appointment, the Veteran said he had not checked his blood glucose for more than 10 days and admitted that he did not check it regularly even before that. It was noted that the Veteran was not using the correct insulin dosages. In the June 2021 JMPR, the parties agreed that the Board erred in not addressing evidence deemed potentially favorable with regard to the question of whether the Veteran's diabetes required a regulation of activities. On review, the Board finds that a rating higher than 20 percent is not warranted for the rating period prior to January 14, 2015. While the Veteran's diabetes treatment required daily insulin injections and restricted diet, it did not, according to the April 2012 and June 2014 VA examinations and private and VA outpatient treatment records, require regulation of activities. As discussed above, the term "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." With regard to the July 2014 notation by the Veteran's physician, he was instructed to enhance his physical activity level. Merriam-Webster online dictionary defines "enhance" as to increase or improve something. https://www.merriam-webster.com/dictionary/enhance. In other words, he was instructed to increase his physical activity, not regulate it. The Veteran was also instructed to adjust his insulin intake according to the amount and timing of physical activity and diet he participated in; the inference being that with increased physical activity, less insulin medication is needed and vice versa. The doctor's regulation had to do with the amount of insulin the Veteran needed, not with the amount of activity allowed. At no time was the Veteran instructed to avoid strenuous activities. In sum, there is no competent evidence demonstrating that prior to January 14, 2015 the Veteran's diabetes required a regulation of activities as defined by the rating criteria. Accordingly, based on the evidence of record, both lay and medical, the Board finds that the next-higher rating of 40 percent is not warranted for the rating period prior to January 14, 2015. The Board also considered compensable complications of diabetes rated separately. See Note (1) to 38 C.F.R. § 4.119, Diagnostic Code 7913. The RO granted service connection for diabetic peripheral neuropathy of the upper and lower extremities, bilaterally in an August 2012 rating decision, and assigned initial ratings effective May 5, 2011 as follows: 10 percent for mild incomplete paralysis of right hand movements; 10 percent for mild incomplete paralysis of the right upper major extremity; 10 percent for mild incomplete paralysis of the left hand movements; 10 percent for mild incomplete paralysis of the left upper minor extremity; 10 percent for mild incomplete paralysis of right foot movements; and 10 percent for mild incomplete paralysis of left foot movements. See Rating Decision dated August 7, 2012. In a July 2020 rating decision, the RO, as relevant here, increased the initial ratings effective May 5, 2011 as follows: 40 percent for moderate incomplete paralysis of the right upper major extremity; 30 percent for moderate incomplete paralysis of the left upper minor extremity; 20 percent for mild incomplete paralysis of the right lower major extremity (sciatic nerve); 20 percent for mild incomplete paralysis of the left lower minor extremity (sciatic nerve); 20 percent for mild incomplete paralysis of the right lower major extremity (femoral nerve); and 20 percent for mild incomplete paralysis of the left lower minor extremity (femoral nerve). See Rating Decision dated July 9, 2020. On review, the Board finds that neither the medical nor lay evidence supports the assignment of higher ratings for the Veteran's compensable diabetic peripheral neuropathy for the rating period prior to January 14, 2015. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.