Citation Nr: 21072023 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-45 142 DATE: December 2, 2021 REMANDED A higher disability rating in excess of 20 percent for service-connected diabetes mellitus type II. A higher rating in excess of 10 percent for service-connected left lower extremity diabetic peripheral neuropathy. A higher rating in excess of 10 percent for service-connected right lower extremity diabetic peripheral neuropathy. REASONS FOR REMAND The Veteran served on active duty from September 1965 to June 1967. The claim is on appeal from a February 2016 rating decision. In September 2021, the Veteran testified at a Board hearing. With respect to the bilateral diabetic peripheral neuropathy issues, the Board notes that, in a separate March 2018 rating decision, the RO granted service connection and assigned a 10 percent rating. The Veteran did not appeal the decision. Nevertheless, given the Veteran's contention that his diabetes mellitus has progressed, and upon consideration of VA' duty to sympathetically construe his pro se filing, the Board finds that the issue of increased evaluations for the Veteran's bilateral diabetic peripheral neuropathy are part of his claim seeking a higher evaluation for the underlying increase rating claim for diabetes mellitus. See, e.g., Chavis v. McDonough, 34 Vet. App. 1 (2021). 1. A higher disability rating in excess of 20 percent for service-connected diabetes mellitus type II. 2. A higher rating in excess of 10 percent for service-connected left lower extremity diabetic peripheral neuropathy. 3. A higher rating in excess of 10 percent for service-connected right lower extremity diabetic peripheral neuropathy. The Veteran contends that the currently assigned disability rating does not compensate for the severity of his diabetes mellitus. During the September 2021 Board hearing, the Veteran made reference to multiple symptoms associated with this diabetes mellitus, to include his bilateral peripheral neuropathy of the lower extremities. Specifically, the Veteran testified that he is having "hard problems" with his diabetes-related neuropathy in both legs as the condition interferes with his walking, which in turn causes him to get tired. See hearing transcript, p.2 The Veteran also testified that he is under oral hypoglycemic agents and requires insulin at least three times a day. In his August 2017 VA Form 9 (Substantive Appeal), the Veteran indicated that his every day activities are regulated due to the nature and state of his diabetic condition. As previously noted, the Veteran is currently in receipt of a 20 percent rating for his diabetes mellitus. Diagnostic Code (DC) 7913 of 38 C.F.R. § 4.119 provides that entitlement to a higher 40 percent rating is established when the evidence shows that a Veteran requires insulin, restricted diet, and regulation of activities. DC 7913 defines regulation of activities as the "avoidance of strenuous occupational and recreational activities." The diabetes criteria are successive in nature and this manifestation must be met for the next higher rating. Medical evidence is required to show that the regulation of activities is medically necessary. See Camacho v. Nicholson, 21 Vet. App. 360 (2007). The Veteran was last afforded a VA examination in connection with his diabetes mellitus in March 2018. The VA examiner indicated that the Veteran's diabetes is managed by restricted diet, oral hypoglycemic agents, and insulin. With respect to the required regulation of activities, the examiner ticked the box indicating "yes" to regulation of activities as part of the medical management. Nevertheless, the example of regulation of activities provided in the report is limited to indicate that the Veteran is instructed to "eat more on the days with a lot of activities." No further information is included in the report. The Board notes that while the March 2018 VA examiner noted that the Veteran's management of his diabetes mellitus includes regulation of activities, the example provided, however, does not seem to be in line with the definition contained in the regulation and further medical clarification is required prior to adjudication of the claim on the merits. With respect to the increase evaluations for his bilateral diabetic peripheral neuropathy, the Veteran was last afforded a VA examination in March 2018. The examination report reflects mild paresthesias and numbness and mild incomplete paralysis of the lower extremities bilaterally. No EMG studies were performed. In light of the foregoing, in a March 2018 rating decision the RO assigned a corresponding 10 percent rating for each lower extremity. As previously noted, during the September 2021 hearing the Veteran described his bilateral diabetic peripheral neuropathy as a "hard problem" that interferes with his walking and causes him to get tired. For the reasons set forth above, given the Veteran's statements and testimony suggesting a worsening of his diabetes mellitus and associated complications, and given that it has been close to 4 years since the Veteran was last afforded VA examinations in connection with these claims, the Board finds that a remand is warranted to comment on the severity of his disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). In light of the remand, updated VA treatment records must be obtained. The matters are REMANDED for the following actions: 1. Obtain any updated VA treatment records dated since March 2018. 2. Thereafter, schedule the Veteran for a VA examination by a qualified medical professional to determine the severity of his service-connected diabetes mellitus and associated diabetic peripheral neuropathy. The entire claims file should be reviewed by the examiner. All signs and symptoms necessary for rating the Veteran's diabetes should be reported in detail, including whether it requires the regulation of activities (avoidance of strenuous occupational and recreational activities) and any complications such as the severity of any diabetic peripheral neuropathy. Consideration should be given to the Veteran's statements showing some indication that his bilateral peripheral neuropathy has worsened. A complete rationale must be provided for any opinion reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.