Citation Nr: 21009917 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-35 282 DATE: February 23, 2021 ORDER A rating in excess of 10 percent for diabetes mellitus, type II (DM) prior to December 4, 2013, is denied. A rating in excess of 20 percent for DM since December 4, 2013, is denied. FINDINGS OF FACT 1. The Veteran had active duty from November 1966 to October 1968. 2. Prior to December 4, 2013, DM was controlled by restricted diet; since December 4, 2013, DM has been treated by daily oral medication and restricted diet. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for DM prior to December 4, 2013, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.25, 4.119, Diagnostic Code (DC) 7913 (2020). 2. The criteria for a rating in excess of 20 percent for DM since December 4, 2013, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.25, 4.119, DC 7913 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION On the Veteran’s Form 9 substantive appeal to the Board filed in September 2015, he designated that only the issue of increased rating for DM was on appeal. Thus, despite listing the issues of higher ratings for left and right lower extremity peripheral neuropathy on his Form 8, these issues are not before the Board. Additionally, the Veteran has received treatment for diabetic foot care at a VA podiatry clinic. He has been treated for onychomycosis and hyperkeratosis, but these diagnoses have not been related to DM. As such, the Board will not address whether separate compensable ratings for those disorders are warranted due to DM. If he desires to file claims for those disorders, he should do so with specificity at the Regional Office. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. DM is rated at 10 percent until December 4, 2013, and 20 percent thereafter pursuant to 38 C.F.R. § 4.119, DC 7913. To warrant a higher rating, the evidence must show: • treatment requiring one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet (20 percent); or, • treatment requiring one or more daily injection of insulin, restricted diet, and regulation of activities (40 percent). Within the criteria for a 100 percent rating, “regulation of activities” is defined as “avoidance of strenuous occupational and recreational activities.” This definition also applies to the “regulation of activities” criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). In addition, although 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, those regulations do not apply where, as here, the conjunction “and” is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Camacho, 21 Vet. App. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). Prior to December 2013. Turning first to the evidence prior to December 2013, a November 2012 VA examiner found that the Veteran did not have a current diagnosis of DM, possibly because the disability was cured by a recent 60-pound weight loss. As such, the examiner did not note any use of insulin or a hypoglycemic agent and found no regulation of activities prescribed by any physician. Instead, the examiner diagnosed impaired fasting glucose managed by restricted diet. The Veteran sought regular VA treatment in December 2013, corresponding with his increase in rating. Prior to that, private medical records show a diagnosis of DM, but insufficient impairment to warrant a 20 percent rating. Specifically, in March 2012, a private physician stated that DM was diet controlled. Private physicians provided the Veteran with a glucometer so he could monitor his blood sugar but did not prescribe an oral hypoglycemic agent or direct him to take daily injections of insulin. As such, the medical evidence does not support a rating in excess of 10 percent prior to December 4, 2013, as he was not prescribed insulin or an oral hypoglycemic agent. Since December 2013. As of December 2013, the Veteran began seeking treatment at VA and was prescribed Metformin to treat DM and the rating was increased to 20 percent; however, the medical evidence does not support a higher rating. As noted, a 40 percent rating also requires one or more daily insulin injections, restricted diet, and regulation of activities. A review of the VA and private treatment records from this period fails to show that the Veteran has been prescribed insulin. Similarly, the evidence does not show that he has been instructed to regulate his activities. Rather, clinical records reflect that he was encouraged to exercise 5 times a week for 30-45 minutes each as tolerated. As such, the medical evidence does not support a rating in excess of 20 percent since December 4, 2013. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s DM has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination report and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brendan A. Evans, 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.