Citation Nr: 21072230 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-01 616 DATE: December 2, 2021 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, is denied. FINDING OF FACT For the entire rating period under consideration, the Veteran's service-connected disability of diabetes mellitus, type II, has been managed using oral hypoglycemics and restricted diet, and regulation of activities was not required to control diabetes. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for diabetes mellitus, type II, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1966 through July 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) regional office. The Veteran was provided a hearing before the undersigned Veterans Law Judge in March 2019. In May 2019, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. The development ordered by the Board (specifically, to seek additional private treatment records and to obtain a new VA examination) has been completed; the Board finds substantial compliance with its remand orders. 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, is denied. The Veteran's diabetes mellitus, type II, is assigned a 20 percent disability rating under 38 C.F.R. § 4.119, DC 7913. The Veteran disagrees with the rating assigned. A 20 percent rating is warranted for diabetes mellitus that requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus that requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, or twice per month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating requires 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating, but non-compensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, DC 7913, Note (1). In order to demonstrate a regulation of activities, medical evidence is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase "regulation of activities" means "avoidance of strenuous occupational and recreational activities." Id. at 362 (quoting 38 C.F.R. § 4.119, DC 7913 (defining the term within the criteria for a 100 percent rating)). Treatment notes prior to an October 2013 VA examination document treatment for diabetes mellitus, type II, through medication and diet regulation but does not show that the Veteran had a regulation of activities as prescribed by a doctor. In October 2013, the Veteran was afforded a VA examination for his diabetes mellitus, type II. It was documented that the Veteran was prescribed an oral hypoglycemic and prescribed insulin with more than one injection per day for the treatment of his diabetes. He did not have regulation of activities. He had diabetic treatment less than two times per month and had no hospitalizations for ketoacidosis or hypoglycemic reactions. At an August 2014 VA examination, the examiner noted that the Veteran treated his diabetes with a restrictive diet, oral hypoglycemic agent, and insulin requiring more than one injection per day. He did not have regulation of activities. He had diabetic treatment less than two times per month and had no hospitalizations for ketoacidosis or hypoglycemic reactions. In November 2017, treatment notes recorded that the Veteran walks daily. The Veteran, however, was somewhat limited in exercise secondary to using a cane and limited mobility. The Veteran's plan advised to check his blood sugar prior to strenuous activity. At a March 2019 VA examination, it was again documented that the Veteran did not require regulation of activities as part of medical management of his diabetes. He had diabetic treatment less than two times per month and had no hospitalizations for ketoacidosis or hypoglycemic reactions. A November 2019 VA examination noted similar findings. Treatment records thereafter are consistent with the findings of the VA examinations, and showed no evidence of regulation of his activities. The Board finds the VA examinations of record to be an adequate basis to rate the Veteran's diabetes. These examinations all contain sufficient detail for the Board to determine whether the Veteran is entitled to an increased rating. As noted, a rating in excess of 20 percent requires the regulation of activities to treat diabetes mellitus. This has simply not been shown by the record at any time, and because a schedular rating in excess of 20 percent requires the regulation of activities to treat diabetes mellitus, a higher schedular rating is not warranted at any time during the course of the Veteran's appeal. The Board finds no indications that the Veteran's activities required regulation, ordered by a medical professional, to control his diabetes. Moreover, there is no evidence that the Veteran has experienced episodes of ketoacidosis or hypoglycemic reactions requiring either hospitalization, or twice a month visits to a diabetic care provider. Therefore, there is no probative evidence to support a 40, 60, or 100 percent schedular rating under DC 7913. The Board notes that the Veteran and his representative has argued that the Veteran is entitled to a higher rating because he requires insulin usage, has to have injections, has a restrictive diet, or has complications from diabetes. To the extent that the Veteran has complications related to his service-connected diabetes mellitus, type II, the Veteran is already separately compensated for such limitations, which include awards for diabetic nephropathy, diabetic peripheral sciatic nerve neuropathy, and diabetic peripheral femoral nerve neuropathy (indeed, these complications have helped form the basis for the Veteran's combined 100 percent schedular rating). To the extent that the Veteran has alleged that he has regulation of activities, the record has not demonstrated that he has been prescribed regulation of activities by a doctor. Rather, the record supports that the Veteran walked daily and was advised to check his blood sugar prior to strenuous activities. Any limitation of activity was prompted by the Veteran's own use of a cane and limited mobility, which has been considered in his awards for diabetic neuropathies. As the Veteran's diabetes did not require the regulation of activities, was not manifested by episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization, and did not require twice a month visits to a diabetic care provider; the Veteran is not entitled to a schedular rating higher than 20 percent at any time during the appeal period. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.