Citation Nr: 21009605 Decision Date: 02/23/21 Archive Date: 02/22/21 DOCKET NO. 15-40 585 DATE: February 23, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus type II is denied. FINDING OF FACT The most probative evidence of record shows the Veteran’s diabetes mellitus type II requires daily insulin and hypoglycemic agents but has not required regulation of activity. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.6, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to June 1969. This matter was previously before the Board in March 2019, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a September 2020 supplemental statement of the case. The Board finds that VA has substantially complied with the March 2019 Board remand. The Board notes that the Veteran is in receipt of a 100 percent disability rating from November 22, 2019. Entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus type II The Veteran contends that his type II diabetes mellitus is more severely disabling than represented by his current 20 percent disability rating. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran’s type II diabetes mellitus is rated as 20 percent disabling under 38 C.F.R.§ 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent evaluation is warranted for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. Important for this case, a 40 percent evaluation is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent evaluation is warranted for diabetes mellitus requiring insulin, a 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. A 100 percent evaluation 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. 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.” Camacho, 21 Vet. App.at 362 (quoting 38C.F.R.§4.119, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent evaluation)). The Board finds that the record shows that the Veteran’s type II diabetes mellitus has required a restricted diet, prescribed oral hypoglycemic agents and use of insulin during the pendency of the appeal. See, e.g. November 2020 VA examination. Therefore, the only question remaining for the Board to consider is whether the Veteran’s type II diabetes mellitus also requires him to regulate his activities. The Veteran underwent a VA examination for diabetes in November 2020. The examiner noted the Veteran’s diabetes diagnosis with an onset of 2003. The examiner found that the Veteran’s condition was treated with prescribed oral hypoglycemic agents and daily injections of insulin. Regulation of activities as part of medical management of diabetes mellitus was not required. The examiner indicated that the Veteran visits his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month and has not had any hospitalizations for ketoacidosis or hypoglycemic reactions in the prior 12 months. The Board notes that these findings are consistent with an earlier VA diabetes examination in August 2012 which found the Veteran’s diabetes was managed with a restricted diet and hypoglycemic agents but did not require regulation of activities. After a review of the pertinent evidence, a rating in excess of 20 percent is not warranted for diabetes mellitus. Based on the above, the Veteran’s diabetes was treated with oral medication and daily insulin injections throughout the pendency of the appeal. When this is applied to the rating criteria for diabetes, it is consistent with the current 20 percent rating. 38 C.F.R. § 4.119, DC 7913. The record does not show restriction of activities as is required for a higher rating. While the Veteran may believe that he is entitled to an increased evaluation for diabetes mellitus, the record does not support a 40 percent evaluation. The Veteran is competent to provide testimony to establish the occurrence of medical symptoms, but they are not medically qualified to prove a matter requiring medical expertise. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). The preponderance of the evidence is against a finding that the Veteran was prescribed restricted activities due to his diabetes mellitus type II. As a preponderance of the evidence is against an increased rating, the benefit of the doubt doctrine does not apply, and the Veteran’s claim for entitlement to a disability in excess of 20 percent for service-connected diabetes mellitus type II is denied. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.