Citation Nr: 21006663 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-25 943 DATE: February 4, 2021 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus II is denied. FINDING OF FACT Throughout the period on appeal period, the Veteran’s diabetes mellitus has been maintained using a restricted diet, oral hypoglycemic agents and more than one daily injection of insulin. The Veteran’s diabetes has not required regulation of activities. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent disabling for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.120, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to March 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). In May 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In June 2019, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain a VA examination. The Board notes that the requested VA examination was obtained in January 2020 and has been associated with the claims file. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that a June 2020 rating decision granted entitlement to service connection for bilateral lower extremity diabetic peripheral neuropathy. Those ratings are not on appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which 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 ratings 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Diabetes Mellitus II The Veteran filed his increased rating claim in March 2015. Throughout the period on appeal, the Veteran’s diabetes has been rated 20 percent disabling pursuant to 38 C.F.R. § 4.119, DC 7913. Under DC 7913, a 20 percent rating is warranted for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet; a 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities; a 60 percent rating is warranted when the diabetes requires 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; and a 100 percent rating when the diabetes requires 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. 38 C.F.R. § 4.119, DC 7913. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under DC 7913. 38 C.F.R. § 4.119, DC 7913, Note (1). During the period on appeal, the Veteran underwent a VA examination in May 2015. The examiner noted a diagnosis for diabetes mellitus type II that was managed by a restricted diet and required insulin injections more than once per day. The examiner noted that the Veteran’s diabetes did not require the regulation of activities as part of its medical management. The Veteran was noted to visit his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than 2 times per month. He had not had any episodes of ketoacidosis or hypoglycemia that required hospitalization in the past 12 months. The Veteran additionally did not have any progressive unintentional weight loss or loss of strength attributable to his diabetes. The Veteran’s diabetes was found manifested by erectile dysfunction. His diabetes was not found manifested by peripheral neuropathy, diabetic nephropathy/renal dysfunction, or retinopathy. A May 2015 VA erectile dysfunction examination shows the Veteran was diagnosed with erectile dysfunction and that a physical examination noted normal penis and testes. In his June 2015 notice of disagreement, the Veteran asserted that he met the 40 percent rating criteria based on being treated with 2 insulins, being on a diet and that “regular activities such as watching my weight and exercising are required.” In a September 2015 letter, the Veteran’s physician, Dr. Bonfanti, noted that the diabetes was no longer controlled on Lantus insulin alone, and that Humalog insulin had to be added and taken before meals. In addition, Dr. Bonfanti noted that the Veteran was on a strict diet, that he was required to exercise regularly. In October 2016, the Veteran testified at a DRO hearing. During that hearing, the representative asserted that the Veteran’s diabetes was managed by an insulin-restricted diet and regulation of activities. Therefore, the representative asserted that the Veteran met the criteria for a 40 percent evaluation. The Veteran testified that he was having vision problems described as blurry vision. The Veteran underwent another VA examination in October 2016. The examiner noted a diagnosis for diabetes mellitus type II that was managed by a restricted diet and insulin injections more than once per day. The Veteran’s diabetes was not found to require regulation of activities as part of its medical management. The Veteran was noted to visit his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than 2 times per month. He had not had any episodes of ketoacidosis or hypoglycemia that required hospitalization in the past 12 months. The Veteran additionally did not have any progressive unintentional weight loss or loss of strength attributable to his diabetes. His diabetes was not found manifested by any recognized complications. The Veteran reported having erectile dysfunction for the past 7 to 8 years. He denied any deformity of his genitals. At a May 2019 Board hearing, the representative asserted that the October 2016 VA examination was inadequate because it was conducted by an optometrist. The Veteran testified that his diabetes resulted in a restriction of activities. In this regard, the Veteran noted that he could not perform certain activities when his blood sugar dropped, and that he sometimes became dizzy while driving. The Veteran last underwent a VA diabetes examination in January 2020. The examiner noted a diagnosis for diabetes mellitus type II which was managed by a restricted diet, prescribed oral hypoglycemic agents and insulin injections more than once per day. In addition, the examiner noted that the Veteran’s diabetes required regulation of activities as part of its medical management; specifically, that when the Veteran’s blood sugar dropped once or twice per week, he would drink orange juice or eat hard candy or chocolate. The examiner further noted that the Veteran visited his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than 2 times per month. He had not had any episodes of ketoacidosis or hypoglycemia that required hospitalization in the past 12 months. Additionally, the Veteran’s had not had any progressive unintentional weight loss or loss of strength attributable to his diabetes. The Veteran’s diabetes was found manifested by peripheral neuropathy, but not diabetic nephropathy, renal dysfunction, or retinopathy. Additionally, a January 2020 VA erectile dysfunction examination report shows the Veteran specifically denied any penile/testicle deformity or abnormality. After a review of the evidence of record, the Board finds that a rating in excess of 20 percent disabling for diabetes is not warranted. In this regard, the Board notes that throughout the period on appeal, the record does not show that the management of the Veteran’s diabetes has required regulation of activities. Instead, the evidence of record shows that the Veteran’s diabetes has required management by a restricted diet and insulin injections more than once per day. The Board recognizes the Veteran’s assertion that his diabetes management has required regulation of activities, including regular exercise, not being able to do things he wants to do when his blood sugar drops, and that he sometimes became dizzy while driving. The Board additionally recognizes that the January 2020 VA examiner indicated that the Veteran’s diabetes management required regulation of activities due to drinking orange juice or eating candy when his blood sugar dropped. However, the Board notes that “regulation of activities” is defined under DC 7913 as avoidance of strenuous occupational and recreational activities. 38 C.F.R. § 4.119, DC 7913. Therefore, being required to perform regular exercise and drinking orange juice and/or eating candy does not meet the definition of required regulation of activities. Additionally, although the Veteran has testified that on occasion he becomes unable to do things he wants to do when his blood sugar drops, such as driving a car, there is no indication in the record that a physician has required him to avoid strenuous occupational and recreational activities as part of the management of his diabetes. Therefore, absent any evidence that the Veteran’s diabetes has required regulation of activities as defined by DC 7913, a higher 40 percent evaluation is not warranted. The Board recognizes the Veteran’s representative’s assertion that the October 2016 VA examination was inadequate because it was conducted by an optometrist. In this regard, the representative noted two signatures on the VA examination report, one by a physician, and one by an optometrist. A review of the October 2016 VA examination report clearly shows that the examination was conducted by a physician. However, the examination report also shows that the examiner noted an April 2015 VA diabetic tele-retinal reader consultation report noting no diabetic retinopathy which was signed by an optometrist. That record appears above the examiner’s signature. Accordingly, the Board finds the representative’s assertion that an optometrist conducted the October 2016 VA diabetes examination is without merit. The Board further recognizes the Veteran’s testimony that his diabetes was manifested by blurry vision. In this regard, a review of the medical records and VA examination reports show that his diabetes has specifically not been found manifested by diabetic retinopathy. Therefore, a separate rating for diabetic retinopathy is not warranted. Lastly, the Board has considered a separate rating for erectile dysfunction, however, the weight of the evidence is against a separate rating. Under DC 7522, a single (and maximum) 20 percent disability rating is provided for penis deformity with loss of erectile power. While the evidence shows loss of erectile power, no penis deformity has been shown. Accordingly, the Board finds that a separate compensable rating for erectile dysfunction is not warranted. For the above reasons, the Board finds that the preponderance of the evidence is against finding that a rating greater than 20 percent under DC 7913 for diabetes mellitus is warranted during the period on appeal. The claim is denied. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.7. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.