Citation Nr: 21012233 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-30 642 DATE: March 3, 2021 ORDER Entitlement to service connection for right lower extremity peripheral neuropathy is denied. Entitlement to service connection for left lower extremity peripheral neuropathy is denied. Entitlement to an initial compensable rating for the residuals of prostate cancer prior to September 1, 2017, and in excess of 20 percent after September 1, 2017, is denied. Entitlement to an initial rating in excess of 10 percent for type II diabetes mellitus prior to February 24, 2020, is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to herbicides during service. 2. Early-onset peripheral neuropathy was not manifest within one year after the last date on which the Veteran was exposed to an herbicide agent during active service. 3. A right or left lower extremity peripheral neuropathy disability was not shown in service or within one year of active service; and, the preponderance of the evidence fails to establish that a present neurological disorder of the right and/or left lower extremity is etiologically related to service or a service-connected disability. 4. The evidence demonstrates that the Veteran’s residuals of prostate cancer prior to September 1, 2017, was manifested by completion of radiation therapy without recurrence and no urinary dysfunction. 5. The evidence demonstrates that the Veteran’s residuals of prostate cancer after September 1, 2017, is manifested by no more than daytime voiding interval between one and two hours or awakening to void three to four times per night. 6. The evidence demonstrates that the Veteran’s type II diabetes mellitus prior to February 24, 2020, was manifested by no more than management by restricted diet. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to an initial compensable rating for the residuals of prostate cancer prior to September 1, 2017, and in excess of 20 percent after September 1, 2017, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115b, Diagnostic Code 7528. 4. The criteria for entitlement to an initial rating in excess of 10 percent for type II diabetes mellitus prior to February 24, 2020, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1963 to May 1976. He served in the Republic of Vietnam from June 1966 to July 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in July 2017 and September 2017 by the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2020, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. The transcript is of record. The issues remaining on appeal were remanded for additional development in August 2020. The Board notes that a July 2020 rating decision reduced an assigned 20 percent rating to 0 percent for the residuals of prostate cancer based upon clear and unmistakable error effective from February 21, 2017, to August 31, 2017. The propriety of the reduction is not in dispute and VA records dated in July 2020 indicate recovery of the overpayment was waived due to VA error. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Compensation may be established for any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The term “disability” for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Veterans diagnosed with an enumerated disease who served in the Republic of Vietnam on active service during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Certain disorders, if manifest to a degree of 10 percent or more for an herbicide exposed veteran, may be presumed service connected. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. Effective September 6, 2013, the provisions of 38 C.F.R. § 3.309 identifying those enumerated diseases were revised by replacing the term “acute and subacute” peripheral neuropathy with “early-onset” peripheral neuropathy. VA also removed Note 2 to §3.309(e), which had required that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. See 78 Fed. Reg. 54,763 (Sept. 6, 2013) (the amendments apply to claims received by VA on or after September 6, 2013, and to claims pending before VA on that date). Under the revised regulations, early-onset peripheral neuropathy must become manifest to a degree of 10 percent or more within one year after the date of a veteran’s last exposure to herbicides in order to qualify for the presumption of service connection. 38 C.F.R. § 3.307(a)(6)(ii). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Organic diseases of the nervous system are qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether evidence submitted by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). A medical opinion based upon an inaccurate factual premise may be discounted entirely. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. 1. Entitlement to service connection for right lower extremity peripheral neuropathy. 2. Entitlement to service connection for left lower extremity peripheral neuropathy. The Veteran contends that he has a neurological disorder of the right and/or left lower extremity as a result of active service. At his February 2020 hearing he asserted that he had peripheral neuropathy secondary to his service-connected type II diabetes mellitus. Service treatment records (STRs) are negative for complaint, treatment, or diagnosis of a neurological disorder of the lower extremities. The Veteran’s March 1967 separation examination revealed a normal clinical evaluation of the neurologic system. A February 2017 diabetes mellitus disability benefits questionnaire (DBQ) noted a date of diagnosis in June 2015. The examiner noted the Veteran did not have recognized complications of diabetes mellitus, including diabetic peripheral neuropathy. Private treatment records include an October 2018 report noting the Veteran had a history of type II diabetes mellitus without complications. An October 2019 report noted diabetic neuropathy as the reason for the appointment, but the examiner’s assessment provided a diagnosis of idiopathic progressive neuropathy. VA examination in December 2020 included a diagnosis of bilateral lower extremity idiopathic progressive neuropathy. It was noted the Veteran had a history of diabetes mellitus and that he reported the onset of lower extremity neuropathy in November 2015. An examination revealed lower extremity diabetic peripheral neuropathy with moderate incomplete paralysis to the femoral nerve, bilaterally. In a subsequent medical opinion, however, the examiner found it was less likely that the Veteran’s bilateral lower extremity idiopathic progressive neuropathy was proximately due to or the result of his service-connected disability. It was noted that the examination showed clear neuropathy in the lower extremities with intact position sense and no neuropathy in the upper extremities. The examiner stated that the etiology of the Veteran’s neuropathy was unclear, but that it could not be assigned immediately to diabetes because with diabetic neuropathy there would be likely involvement in the upper extremities as well. Based upon the evidence of record, the Board finds that the right and/or left lower extremity peripheral neuropathy was not shown during active service. Service treatment records are negative in that respect. The Veteran’s exposure to herbicides during service in Vietnam is conceded. The persuasive evidence, however, demonstrates that early-onset peripheral neuropathy or another organic disease of the nervous system was not manifest within one year of active service. In fact, the Veteran does not contend that he developed any symptoms of lower extremity neuropathy prior to November 2015. He likewise does not argue that his neuropathy disability is otherwise related to his active service, to include as a result of his exposure to herbicide agents, and there is no evidence to establishing such a relationship. See Combee v. Brown, 34 F.3d 1039 (1994). The preponderance of the evidence also fails to establish that a present neurological disorder of the right and/or left lower extremity is etiologically related to a service-connected disability. The overall evidence, including the December 2020 VA opinion, is found to be persuasive and to have been based upon adequate rationale. The examiner provided a detailed explanation as to why the Veteran’s neuropathy of the lower extremities was idiopathic (a disease with no identifiable cause see https://pubmed.ncbi.nlm.nih.gov/24121599), as opposed to diabetic peripheral neuropathy. Further, in doing so, the examiner is shown to have reviewed of the evidence of record and to have adequately considered the credible lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Consideration has been given to the October 2019 private medical report noting the reason for the Veteran’s appointment was diabetic neuropathy. It is noted, however, that the examiner’s assessment was idiopathic progressive neuropathy. No comments were provided by the private physician as to notation of diabetic neuropathy. As such, the Board finds the report to be of no probative weight as to this matter. Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that they received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. Consideration has also been given to the Veteran’s personal assertions that he has neurological disorders of the right and left lower extremities as a result of service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The chronic disabilities at issue are not matters that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In conclusion, the Board finds service connection for right or left lower extremity peripheral neuropathy is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claims. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 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. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. 3. Entitlement to an initial compensable rating for the residuals of prostate cancer prior to September 1, 2017, and in excess of 20 percent after September 1, 2017. The Veteran contends that a higher schedular rating was warranted for his service-connected residuals of prostate cancer. His original service connection claim was received by VA on February 21, 2017. He did not respond to VA correspondence issued in August 2020 requesting that he complete the requisite authorization forms necessary for VA assistance in obtaining copies of his private treatment records.   Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. Where diagnostic codes refer the decisionmaker to the specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Since the areas of dysfunction described do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis. 38 C.F.R. § 4.115a. For malignant neoplasms of the genitourinary system a 100 percent rating is provided. It is noted that following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Only a single evaluation may be assigned for residuals of prostate cancer based solely on voiding or renal dysfunction, whichever is predominant. See Bailey v. Wilkie, No. 19-2661 (January 6, 2021). Ratings are provided for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular (100 percent). For renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion (80 percent), with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling (60 percent), with albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling (30 percent), and with albumin and casts with history of acute nephritis; or, hypertension that is non-compensable (0 percent). 38 C.F.R. § 4.115a. For voiding dysfunction, particular conditions are to be rated as urine leakage, frequency, or obstructed voiding. For continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence: Requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day (60 percent); requiring the wearing of absorbent materials which must be changed 2 to 4 times per day (40 percent); and requiring the wearing of absorbent materials which must be changed less than 2 times per day (20 percent). 38 C.F.R. § 4.115a. For urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night (40 percent); with daytime voiding interval between one and two hours, or; awakening to void three to four times per night (20 percent); and with daytime voiding interval between two and three hours, or; awakening to void two times per night (10 percent). 38 C.F.R. § 4.115a. For obstructed voiding characterized by urinary retention requiring intermittent or continuous catheterization (30 percent); and with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 1. Post void residuals greater than 150 cc, 2. Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec), 3. Recurrent urinary tract infections secondary to obstruction, and 4. Stricture disease requiring periodic dilatation every 2 to 3 months (10 percent). 38 C.F.R. § 4.115a. The pertinent evidence of record includes a February 2017 prostate cancer DBQ noting a diagnosis prostate cancer in January 2014 with no complaints in 2014. It was noted the Veteran underwent radiation therapy in 2015. The examiner noted he did not have a voiding dysfunction or urine leakage. There was no history of recurrent symptomatic urinary tract or kidney infections. The examiner stated his prostate cancer did not impact his ability to work.   VA examinations on August 31, 2017, noted the Veteran had voiding dysfunction due to prostate cancer and that it caused urine leakage that did not require the wearing of absorbent materials or the use of an appliance. There was increased urinary frequency with daytime voiding interval between two and three hours and nighttime awakening to void three to four times. There was no renal dysfunction due to the condition and no signs or symptoms of obstructed voiding. VA prostate cancer examination revealed the status of his prostate cancer in remission. It was noted he completed radiation therapy in October 2013. The examiner stated the Veteran’s prostate cancer did not impact his ability to work. Private treatment records dated in October 2018 noted the Veteran did not have urinary incontinence. It was noted he experienced urinary frequency and urgency with no urge incontinence. A review of systems noted that he denied urine retention, painful urination, urinary retention, and other genitourinary symptoms. Reference was made to a voiding study that showed good flow with effective emptying. In handwritten notes on the report the Veteran stated that his bladder never emptied and indicated that he experienced leakage. He also noted he took tamsulosin as treatment for painful urination. VA treatment records dated in November 2018 noted the Veteran had nocturia times four with interrupted sleep. It was also noted that he was taking Flomax (tamsulosin). Another November 2018 report noted he had difficulty staying asleep due to having to urinate frequently. At his Board hearing in February 2020 the Veteran testified that he saw a private urologist. He reported he was using at least four absorbent materials per day. He stated he got up two to three times per night to void. It is again noted that VA attempted to obtain treatment records from this physician, and that the Veteran failed to complete and submit the necessary medical release. VA treatment records dated in March 2020 noted the Veteran had urinary incontinence. In correspondence received by VA in July 2020 the Veteran reported that he had received disposable absorbent underwear on March 21, 2020. A May 2020 report noted he had not received his underwear in a while and requested a “refill.” In June 2020, the Veteran provided a copy of a private treatment report signed by J.E.R., M.D., on March 23, 2020, indicating he had denied urine retention, painful urination, urinary retention, and other genitourinary symptoms. An appended note to the report signed by A.C. on June 24, 2020, stated that due to a prostate issue resulting in frequent urination the Veteran required four to six diapers daily. VA medical opinion in September 2020 noted that an in-person examination could not be scheduled due to the COVID-19 pandemic, but that the Veteran’s records were reviewed and found to include sufficient information for the requested opinion. The examiner summarized the evidence of record and found the Veteran’s current level of severity of prostate cancer was that of remission with no evidence of progression or worsening. The current level of severity of his prostate cancer residuals was that of stability since 2017 with no evidence of progression or worsening. The examiner noted an apparent inconsistency in the March 23, 2020, report from Dr. J.E.R. and an appended note signed by A.C. on June 24, 2020, but found that no probative value could be attached to the June 24, 2020, note. The examiner stated that the qualifications of A.C. were unknown and that the statement was not based on any clinical observations or conclusions. It was further noted that the statement appeared to be based on speculation and that the Veteran’s treatment records failed to demonstrate consistent and chronic signs, symptoms, or disabilities due to his treatment for prostate cancer. The examiner also found that there was a lack of evidence in the available record for any signs, symptoms, or functional impairments due to his prostate cancer and its residuals. Nor that his prostate cancer residuals have had any effect on his occupational functioning and activities of daily living. Based upon the evidence of record, the Board finds the Veteran’s service-connected residuals of prostate cancer prior to September 1, 2017, was manifested by completion of radiation therapy without recurrence and no urinary dysfunction. There is no evidence to the contrary. The Board further finds that the evidence demonstrates that the Veteran’s service-connected residuals of prostate cancer after September 1, 2017, is manifested by no more than daytime voiding interval between one and two hours or awakening to void three to four times per night. Non voiding and non-renal residuals of the prostate cancer have not been identified. Although the Veteran testified in February 2020 that he was using at least four absorbent material per day for urinary leakage, the September 2020 VA medical examiner’s opinion is persuasive that the medical evidence of record did not indicate the severity of prostate cancer residuals sufficient to require the use of absorbent materials. The Board finds the February 2020 opinion is consistent with the available medical evidence or record and that sufficient rationale was provided for dismissing the appended note in June 2020 from A.C. who is not identifiable as a medical care professional. It is further noted that private treatment records dated in October 2018 noted the Veteran experienced urinary frequency and urgency with no urge incontinence and that in a March 23, 2020, report Dr. J.E.R. stated he had denied urine retention, painful urination, urinary retention, and other genitourinary symptoms. The Board acknowledges that VA treatment records dated in March 2020 indicate that the Veteran had urinary incontinence and that a May 2020 report indicates he was provided a “refill” for disposable absorbent underwear. Those reports, however, include no medical comments as to how many times per day the absorbent materials must be changed. The Board notes that the Veteran is shown to have received private treatment for his residuals of prostate cancer and that he has provided copies of pertinent records in support of his claim. He has not indicated that additional record exists, and he has not provided authorization for VA to assist him in obtaining any additional private treatment records. The Board accords the available medical findings of record greater weight than any subjective complaints of increased symptomatology. The preponderance of the evidence in this case is against the claim. 4. Entitlement to an initial rating in excess of 10 percent for type II diabetes mellitus prior to February 24, 2020. The Veteran contended that a higher schedular rating was warranted for his service-connected type II diabetes mellitus prior to February 24, 2020. His original service connection claim was received by VA on February 21, 2017. VA regulations provide a 10 percent rating for diabetes mellitus that is manageable by restricted diet only; a 20 percent rating for diabetes mellitus that requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet; a 40 percent rating for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities; a 60 percent rating for diabetes mellitus that 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 for diabetes mellitus that requires more than one daily injection of insulin, restricted diet, and regulation of 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, Diagnostic Code 7913. Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating, but noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013).   The phrase regulation of activities means avoidance of strenuous occupational and recreational activities. 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 (2007). The pertinent evidence of record includes a February 2017 DBQ noting a date of diagnosis in June 2015 with current treatment of management by restricted diet. It was noted that the disorder did not require regulation of activities, that the Veteran visited his diabetic care provider less than two times per month, and that he had no episodes of ketoacidosis or hypoglycemia requiring hospitalization over the past 12 months. The examiner noted he did not have recognized complications of diabetes mellitus, including diabetic peripheral neuropathy. It was further noted that the Veteran’s diabetes mellitus did not impact his ability to work. Private treatment records dated in October 2018 noted the Veteran had a history of type II diabetes mellitus without complications. Records dated in January 2019 noted the Veteran was on a maintenance diet and was happy with his weight loss. A list of his current medications did not include metformin. A March 2020 note indicated his diabetes mellitus was well controlled. Pharmacy records dated February 24, 2020, indicate a prescription for metformin was filled. At his Board hearing in February 2020 the Veteran testified that he had been taking Metformin for his diabetes mellitus for a couple of years. He stated that he exercised twice a day for ten to fifteen minutes. VA treatment records dated in March 2020 noted the Veteran had recently started on metformin. In April 2020, the Veteran provided copies of private treatment records in support of his claim. An undated statement from a private psychotherapist noted he had recently shared that he may have accidently provided invalid information in regard to what medication he was taking. The specific information was not identified. It was noted the Veteran was under treatment for adjustment disorder with depressed mood and that at times he became easily confused and struggled with recall and sequencing patterns. Based upon the evidence of record, the Board finds the Veteran’s service-connected type II diabetes mellitus prior to February 24, 2020, was manifested by no more than management by a restricted diet only. The evidence of record clearly shows that the Veteran received oral medication for his type II diabetes mellitus on February 24, 2020. There is no probative evidence, however, demonstrating that any diabetes mellitus medication was prescribed prior to this date. The preponderance of the evidence in this case is against the claim for a rating in excess of 10 percent prior to February 24, 2020. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.