Citation Nr: 21073236 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-99 820A DATE: December 7, 2021 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus (DM) is denied. FINDING OF FACT The Veteran's DM has not required daily insulin injections and/or regulation of activities. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for DM have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision. In December 2020, the Veteran and his wife testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran's testified in December 2020 that his DM has worsened since his June 2017 VA examination, to include his belief that he had developed peripheral neuropathy in his upper and lower extremities. The Board remanded the matter in order to obtain outstanding records and an updated VA examination in relation to his DM, in order to fully assist the Veteran with the development of his claim for an increased rating. Thereafter, the VA Regional Office issued an examination scheduling request. In a July 2021 phone call, the Veteran stated that he was not aware of his DM claim, as he is already service connected. He stated that he would like to discontinue his active claim and that he would not be attending any associated VA examination. Despite this request, the Veteran was informed in an October 2021 Supplemental Statement of the Case (SSOC) that a request to discontinue his appeal must be in writing. The SSOC continued the Veteran's current 20 percent disability rating for DM. No written request to discontinue the Veteran's claim has been received and the matter is again before the Board. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Rating Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's DM is currently rated as 20 percent disabling under DC 7913. See 38 C.F.R. § 4.119, DC 7913. Thereunder, a 20 percent disability rating is warranted for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent disability rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent disability rating is warranted for 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. Finally, a maximum schedular 100 percent disability rating is warranted for 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. The Board notes that "regulation of activities" is defined in the rating criteria for a 100 percent disability rating under DC 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 DC 7913. Additionally, medical evidence is required to show that occupational and recreational activities have been restricted. Further, in light of the conjunctive "and" in the rating criteria for a 40, 60, or 100 percent disability rating under DC 7913, all criteria must be met to establish entitlement under these criteria. Because each higher rating builds on the criteria of the rating that precedes it, DC 7913 is "successive." Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). Additionally, Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating under DC 7913); noncompensable complications are considered part of the diabetic process under DC 7913. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an award of an increased rating in excess of 20 percent for DM. The reasons follow. The Veteran underwent a VA examination for assessment of his DM in November 2013. The Veteran's DM was noted to be managed by diet restrictions and a prescribed oral hypoglycemic agent. The Veteran did not require insulin, and the examiner noted that the Veteran's DM management did not require regulation of his activities. DM was not found to impact the Veteran's ability to work. Thereafter, the Veteran's treatment for his DM remained relatively stable without significant exacerbations of his condition. The Veteran underwent another VA examination for assessment of his DM in June 2017. The Veteran's DM was again noted to be managed by diet restrictions and a prescribed oral hypoglycemic agent. The Veteran did not require insulin and the examiner noted that the Veteran's DM management does not require regulation of his activities. DM was not found to impact the Veteran's ability to work. The findings of the Veteran's 2013 and 2017 VA examinations are consistent with his current 20 percent disability rating. Although the Veteran verbally expressed a wish to discontinue his claim, to the extent that his claim is still active, the Veteran has hindered VA's attempt to assist the Veteran with his claim by refusing an updated VA examination pursuant to the February 2021 Board remand. The duty to assist a claimant is not a one-way street and the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 406 (1991); 38 U.S.C. § 5107(a). Although the Veteran has declined to appear for another VA examination, the Veteran's medical records do not demonstrate that the severity of his DM warrants an increased disability rating of 40 percent or greater. Notably, the Veteran still does not require insulin injections, as required by DC 7913. Rather, the Veteran continues to take an oral hypoglycemic agent twice per day. A February 2021VA treatment record showed the Veteran to have no retinopathy and a normal foot examination. Treatment records do not show the Veteran to have a diagnosis of neuropathy in the lower extremities. The Veteran has required only routine treatment without the need for emergency or inpatient care. The evidence does not show an overall worsening of the Veteran's condition requiring regulation of the Veteran's activities. The weight of the evidence shows that the Veteran does not meet the criteria for a 40 percent rating or higher, namely daily injections of insulin. Accordingly, a higher rating for DM is not warranted. For the reasons stated above, the preponderance of evidence weighs against the Veteran's claim of entitlement to a disability rating in excess of 20 percent for DM. As the preponderance of evidence weighs against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.