Citation Nr: 21071896 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 11-02 619 DATE: December 1, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for diabetes mellitus type II (previously rated as diabetes mellitus type II with nephropathy and retinopathy) is denied. FINDING OF FACT The Veteran's diabetes mellitus type II (previously rated as diabetes mellitus type II with nephropathy and retinopathy) requires insulin, hypoglycemic agents, and a restricted diet; regulation of activities has not been demonstrated. CONCLUSION OF LAW The criteria for establishing entitlement to an evaluation in excess of 20 percent for diabetes mellitus type II (previously rated as diabetes mellitus type II with nephropathy and retinopathy) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.31, 4.119, Diagnostic Code 7913 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1973. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for diabetes mellitus type II with retinopathy at a 20 percent disability rating, effective May 14, 2007. The Veteran appealed the initial rating of 20 percent. The Board remanded the claim for further development in April 2015 and denied the claim in March 2017. The Veteran appealed this denial to the U.S. Court of Appeals for Veterans Claims (the Court). In August 2018, the Court granted a Joint Motion for Remand (JMR) which, in relevant part, requested a vacatur and remand of the March 2017 denial. Since the Court issued its decision, the Board has remanded this claim for further development in April 2019, August 2020, and June 2021. Pursuant to the Board's June 2021 remand, the RO obtained a medical opinion as to whether the Veteran's doctor orally directed him to restrict his activities, and to consider the Veteran's lay statement that the doctor did so. The RO obtained a compliant medical opinion in July 2021. See C&P Exam, July 29, 2021. Therefore, the RO substantially complied with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an initial rating in excess of 20 percent for diabetes mellitus type II (previously rated as diabetes mellitus type II with nephropathy and retinopathy) The Veteran appeals the initial assignment of a 20 percent disability rating for diabetes mellitus, effective May 14, 2007. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall 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. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. The Board will consider entitlement to staged ratings to compensate for times during the rating period when the disability may have been more severe than at other times during the rating period on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating criteria for the endocrine system, including diabetes, have been revised during the course of the Veteran's appeal, effective December 10, 2017. When a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies. VAOPGCPREC 11-97 (Mar. 24, 1997). However, revised statutory or regulatory provisions may not be applied to any time period prior to the effective date of the change. 38 U.S.C. § 7104(c); VAOPGCPREC 3-2000 (Apr. 10, 2000). Accordingly, the disability must be rated according to both the old and new rating criteria, and the Veteran must receive the benefit of the more favorable rating schedule. Under the criteria effective prior to December 10, 2017, type II diabetes mellitus is rated under 38 C.F.R. § 4.119, Diagnostic Code 7913. A 20 percent rating is warranted when it requires insulin and restricted diet, or; oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when diabetes requires insulin, a restricted diet, and regulation of activities. A 60 percent evaluation is warranted when diabetes requires insulin, a 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 total evaluation of 100 percent is warranted when diabetes requires more than one daily injection of insulin, a 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. 38 C.F.R. § 4.119 (prior to December 10, 2017). Under the criteria effective December 10, 2017, a 20 percent rating is warranted when diabetes requires one or more daily injections of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when diabetes requires one or more daily injections of insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when diabetes requires one or more daily injections 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 injections 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. Under both versions of the rating criteria, compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The criteria under Diagnostic Code 7913 are successive rating criteria, whereby "the evaluation of each higher disability rating included the criteria of each lower disability rating, such that if a component was not met at any one level, the Veteran could only be rated at the level that did not require the missing component." Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). Rating criteria of DC 7913 Applying the evidence to the criteria in effect before and after December 10, 2017, the Veteran's examinations and treatment records show that the Veteran requires insulin and oral hypoglycemic agents. See, e.g., C&P Exam, July 29, 2021 VA has conceded a restricted diet not based on any particular medical directive, but because a primary objective in the treatment of diabetes is to maintain glucose levels through proper nutrition. See SSOC, September 2, 2021. However, the evidence does not show regulation of the Veteran's activities. In the July 2021 examination, the examiner reported that the Veteran does not have restricted activities and the Veteran denied restriction of his activities. The November 2019 examination also found that the Veteran's activities are not medically restricted due to his diabetes. VA treatment records and private treatment records are silent as to any restriction of the Veteran's activities due to diabetes. At one time, the Veteran contended that his physician verbally advised him that he is required to restrict his daily activities because of diabetes. The Board remanded for a medical opinion to address his statement. See Remand BVA or CAVC April 19, 2019. The VA examiner stated that the now Veteran denied any restrictions on his activities and pointed out that diabetic restrictions on activities are meant to prevent heavy exertion in cases of very intense physical exercise such as that of endurance athletes, and that such restrictions would be inappropriate for the Veteran, who is retired and has a sedentary lifestyle. The examiner cited a medical treatise in reaching this conclusion, and the well-reasoned conclusion based on medical evidence holds substantial probative value. See C&P Exam, July 29, 2021. As such, the preponderance of the evidence is against a finding that the Veteran's diabetes calls for regulation of his activities. As the rating criteria for Diagnostic Code 7913 are successive, a disability rating in excess of 20 percent cannot be warranted without a showing of regulated activities. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). Compensable complications of diabetes As noted above, 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) calls for separate evaluations for compensable complications of diabetes unless they are part of the criteria used to support a 100 percent evaluation. In this case, the following disabilities associated with diabetes have previously been assigned separate ratings: nephropathy with hypertension associated with diabetes; diabetic retinopathy; peripheral neuropathy of the right upper extremity and left upper extremity; diabetic neuropathy of the right lower extremity and left lower extremity; diabetic neuropathy of the right lower extremity and left lower extremity; peripheral neuropathy of the right upper extremity and left upper extremity; hypertension associated with diabetes; and erectile dysfunction associated with diabetes. In the Veteran's March 2019 Informal Hearing Presentation, the Veteran argued that the Board should address whether increased urinary frequency with dribbling, and a large bunion on the Veteran's right foot warrant separate compensable ratings as diabetic complications. Concerning the urinary symptoms, the Veteran stated at his June 2010 VA examination for diabetes that he urinates 1-2 times per night. At his June 2011 VA examination for diabetes, he reported urinating 2 times per night and 6-7 times per day with urgency. And at his June 2015 VA examination for diabetes, he said that he urinates three times per night and has some sensation of incomplete voiding with dribbling. In a VA examination, the examiner diagnosed obstructive uropathy which is secondary to the Veteran's enlarged prostate. See C&P Exam, November 14, 2019. Therefore, the evidence is against a finding that the Veteran's symptoms of increased urination and dribbling are a complication of the Veteran's diabetes or are caused or aggravated by the Veteran's diabetes. Concerning the bunion on the right foot which was noted in the July 2016 podiatry nursing outpatient note, there is no evidence that the condition is a complication of the Veteran's service-connected diabetes mellitus, type II. Court of Appeals for Veterans Claims The August 2018 Joint Motion for Remand which was granted by the Court in August 2018 directed the Board to obtain an examination and medical opinion which addressed his lay statements relating to the severity of his service-connected diabetes mellitus type II, including his statement that his doctor orally advised him that he is required to restrict his daily activities. As detailed above, the July 2021 examination and medical opinion address the Veteran's lay statements; therefore, the Board has complied with the Joint Motion for Remand. Conclusion The Board has also considered whether staged ratings are appropriate in this case. However, the above evidence reflects that the Veteran's symptomatology has been stable throughout the appeal period and was consistent with no more than a 20 percent rating since service connection was granted, effective May 14, 2007. Therefore, a staged rating is not warranted in this case. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus type II (previously rated as diabetes mellitus type II with nephropathy and retinopathy) is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.