Citation Nr: A21020641 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 210608-164853 DATE: December 29, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus is denied. REMANDED Entitlement to service connection for diabetic retinopathy as secondary to service-connected type II diabetes mellitus is remanded. Entitlement to service connection for hypertension as secondary to service-connected type II diabetes mellitus is remanded. Entitlement to service connection for chronic kidney disease as secondary to service-connected type II diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy as secondary to service-connected type II diabetes mellitus is remanded. Entitlement to service connection for essential tremor of the right upper extremity as secondary to service-connected type II diabetes mellitus is remanded. Entitlement to service connection for stroke as secondary to service-connected type II diabetes mellitus is remanded. FINDING OF FACT The most probative evidence of record shows that the Veteran's diabetes requires insulin injections and a restricted diet, but does not require a medically-prescribed avoidance of strenuous occupational and recreational activities. CONCLUSION OF LAW The criteria for an increased rating, in excess of 20 percent, for diabetes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1963 to October 1969. In August 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of a May 2013 rating decision. In October 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. In the July 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. 1. Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus Disability evaluations are determined by applying the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) in 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All reasonable doubt is resolved in the claimant's favor. 38 C.F.R. § 4.3. The Veteran's diabetes is rated at 20 percent under DC 7913. 38 C.F.R. § 4.119. Pursuant to DC 7913, a 10 percent rating is assigned when a diabetic treatment is limited to a restricted diet, and a 20 percent rating is assigned if the treatment requires a restricted diet, as well as insulin injections or an oral hypoglycemic agent. A 40 percent rating is warranted when the treatment requires insulin, restricted diet, and regulation of activities. A 60 percent evaluation is assigned if the treatment requires insulin, restricted diet, regulation of activities, and the veteran experiences episodes of ketoacidosis or hypoglycemic reactions requiring at least one hospitalization per year or visits to a diabetes care provider at least twice a month, plus the veteran has had diabetic complications that, if evaluated separately, qualify as noncompensable. A 100 percent evaluation is assigned for diabetes that requires more than one daily injection of insulin, restricted diet, regulation of activities, and the veteran experiences 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 qualify as compensable if evaluated separately. 38 C.F.R. § 4.119, DC 7913. Further, while VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, this approach is inapplicable where the Rating Schedule establishes "successive" criteria. Relevant here, the DC 7913 rating criteria qualify as "successive," see Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007), since the evaluation for each higher disability rating includes the criteria of each lower disability rating, so that if a component is not met at any one level, a Veteran can only be rated at the level that does not require the missing component, see Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Moreover, for the purposes of DC 7913, the phrase "regulation of activities" is a term of art, since it implies a medically-prescribed avoidance of strenuous occupational and recreational activities. See Camacho, 21 Vet. App. at 363. Therefore, evidence of a medically-directed avoidance of strenuous activities is required to support this component of the DC 7913 criteria for the ratings of 40 percent of higher. Further, a Veteran's lay statement that (s)he voluntary avoids strenuous activities does not suffice, even if the Veteran's lay statement is credible. See id. at 364. In other words, the record should contain evidence that a medical care provider found that his/her "diabetes is of such a severity that [(s)he] should curtail his[/her] activities, such as to avoid strenuous activity." Id. Lastly, while compensable complications of diabetes are evaluated separately, noncompensable complications are considered part of the diabetic process and do not warrant a higher evaluation. See 38 C.F.R. § 4119, DC 7913, Note (1). The Veteran's diagnosis of diabetes is not in dispute. Further, the evidence of record and the June 2020 VA examiner's findings establish that the Veteran's diabetes is managed by insulin injections administered more than once a day. Therefore, for the purposes of a DC 7913 rating, in excess of 20 percent, the Veteran is required to establish that he has maintained a restricted diet and, in addition, that a medical care provider found that his diabetes was of such a severity that the provider directed him to avoid any strenuous activity. Here, the avoidance-of-strenuous-activity component of the DC 7913 criteria governing the ratings, in excess of 20 percent, has not been met in this case since the Veteran's medical treatment records are silent as to any directive by a medical care provider that the Veteran should avoid strenuous activities because of his diabetes. Moreover, the June 2020 VA examiner found that the Veteran did not require any avoidance of strenuous activities. In addition, the Veteran's medical treatment record of March 2013 reflected his treating medical practitioner's encouragement to "Increase physical activity by walking 20 minutes daily." Part of the Veteran's treatment plan was "regular exercise" in October 2017 and to "Encourage activity as tolerated" in April 2020. Lastly, the Board recognizes the Veteran's admission to the emergency department for hypoglycemia in December 2019. This episode does not give rise to a higher disability rating because the higher rating requires hypoglycemic reactions requiring one or two hospitalizations per year. There are no records indicating this occurs at least on a yearly basis. The Board has also considered whether a temporary total disability rating is warranted based on this hospitalization. The pertinent regulation is as follows: A temporary total disability rating (100 percent) will be assigned when it is established that one or more service-connected disabilities has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. The record contains a report of hospitalization with an admission date of December 19, 2019 and a discharge date of December 23, 2019 due to hypoglycemia. This does not meet the criteria for a temporary total disability rating because the duration of the hospital stay was 4 days. In conclusion, the Veteran failed to satisfy the avoidance-of-strenuous-activity component of the DC 7913 criteria governing the ratings in excess of 20 percent. Therefore, under the successive criteria governing DC 7913 ratings, the highest rating applicable to the Veteran's diabetes is that of 20 percent. Accordingly, the benefit-of-the-doubt doctrine is not for application, and his claim is denied. Any compensable complications of the Veteran's diabetes mellitus are discussed in the Remand section below. REASONS FOR REMAND The Veteran has not been afforded a VA examination for the alleged complications resulting from his service-connected diabetes mellitus. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McClendon v. Nicholson, 20 Vet. App.79 (2006); see also 38U.S.C. §5103A (d)(2); 38C.F.R. §3.159(c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McClendon, 20Vet. App.at 83. The rating criteria for diabetes mellitus under DC 7913 requires VA to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. See 38 C.F.R. § 4119, DC 7913, Note (1). As described above, a 100 percent evaluation is not warranted. Therefore, any compensable complications of diabetes mellitus, as alleged by the Veteran's attorney, must be separately evaluated as a secondary service-connection claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his diabetic retinopathy. The VA examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand. The VA examiner is requested to provide an opinion as to: (a.) Whether it is at least as likely as not (that is, a 50 percent probability or higher) that the Veteran's diabetic retinopathy had its onset in service, or is otherwise causally related to service. (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's diabetic retinopathy is caused or aggravated by his service-connected diabetes mellitus. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. The VA examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand. The VA examiner is requested to provide an opinion as to: (a.) Whether it is at least as likely as not (that is, a 50 percent probability or higher) that the Veteran's hypertension had its onset in service, or is otherwise causally related to service. (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension is caused or aggravated by his service-connected diabetes mellitus. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his chronic kidney disease. The VA examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand. The VA examiner is requested to provide an opinion as to: (a.) Whether it is at least as likely as not (that is, a 50 percent probability or higher) that the Veteran's chronic kidney disease had its onset in service, or is otherwise causally related to service. (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's chronic kidney disease is caused or aggravated by his service-connected diabetes mellitus. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his peripheral neuropathy. The VA examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand. The VA examiner is requested to provide an opinion as to: (a.) Whether it is at least as likely as not (that is, a 50 percent probability or higher) that the Veteran's peripheral neuropathy had its onset in service, or is otherwise causally related to service. (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's peripheral neuropathy is caused or aggravated by his service-connected diabetes mellitus. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his essential tremor of the right upper extremity. The VA examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand. The VA examiner is requested to provide an opinion as to: (a.) Whether it is at least as likely as not (that is, a 50 percent probability or higher) that the Veteran's essential tremor of the right upper extremity had its onset in service, or is otherwise causally related to service. (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's essential tremor of the right upper extremity is caused or aggravated by his service-connected diabetes mellitus. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his stroke. The VA examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand. The VA examiner is requested to provide an opinion as to: (a.) Whether it is at least as likely as not (that is, a 50 percent probability or higher) that the Veteran's stroke had its onset in service, or is otherwise causally related to service. (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's stroke is caused or aggravated by his service-connected diabetes mellitus. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. The opinions must explicitly address both causation and aggravation to be deemed adequate. The VA examiner is advised that in this context, aggravation means the service-connected disability caused an increase in the severity of an existing nonservice connected disability. The examiner is asked to specifically review and discuss the private medical opinion of July 2021 and provide an opinion supported by reasons and bases for each issue involved. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. The Appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, 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.