Citation Nr: 21013949 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-06 844 DATE: March 11, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to September 30, 2014 for diabetes mellitus, type II is denied. A 20 percent rating from September 30, 2014 to February 27, 2015 for diabetes mellitus, type II is granted. Entitlement to a rating in excess of 20 percent from February 27, 2015 for diabetes mellitus, type II is denied. FINDINGS OF FACT 1. Prior to September 30, 2014, the Veteran’s diabetes mellitus, type II was manageable by restricted diet only. 2. From September 30, 2014, the Veteran’s diabetes mellitus, type II required an oral hypoglycemic agent and restricted diet, but not regulation of activities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent prior to September 30, 2014 for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913. 2. The criteria for a 20 percent rating from September 30, 2014 to February 27, 2015 for diabetes mellitus, type II have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, DC 7913. 3. The criteria for entitlement to a rating in excess of 20 percent from February 27, 2015 for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, DC 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1966 to August 1968, including wartime service in the Republic of Vietnam. In October 2018, the Board remanded the Veteran’s increased rating claim for diabetes to obtain a VA examination for the Veteran’s diabetes mellitus, type II. The Veteran subsequently underwent a VA examination for his diabetes in August 2019, and the Board finds this examination adequate. Therefore, the Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Staged ratings have been considered for the Veteran’s diabetes mellitus, type II. The Board finds that staged ratings are appropriate for this condition as the evidence demonstrates that the Veteran’s diabetes has varied throughout the appeal period. 1. Entitlement to an initial rating in excess of 10 percent prior to September 30, 2014 for diabetes mellitus, type II is denied; a 20 percent rating from September 30, 2014 to February 27, 2015 for diabetes mellitus, type II is granted; entitlement to a rating in excess of 20 percent from February 27, 2015 for diabetes mellitus, type II is denied. The Veteran contends that he is entitled to a higher rating for his diabetes mellitus, type II. See February 2016 VA Form 9. The Veteran specifically notes that, in addition to having to follow a restricted diet, the Veteran’s diabetes affects his regulation of activities. Id. The Veteran is in receipt of a 10 percent rating prior to February 27, 2015 and a 20 percent rating thereafter for his diabetes mellitus, type II under DC 7913. A rating of 20 percent is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A rating of 40 percent is assigned for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A rating of 60 percent is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities and involving episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or visits to a diabetic care provider twice a month plus complications that would not be compensable if separately evaluated. A rating of 100 percent is assigned for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) and involving 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. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119. VA Regulation provides that it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2015). The Court has held that 38 C.F.R. § 4.21 has no application when rating diabetes mellitus. See Camacho v. Nicholson, 21 Vet. App. 360 (2007). The rating criteria for diabetes mellitus employ the word “and” between different criterion for each disability rating higher than 10 percent. The Court upheld the Board’s interpretation of conjunctive joining (use of the word “and”) of criteria for a given rating as meaning that all of the criteria so joined were necessary in order to award the rating. Id. at 366. Specifically, the Court explained that “if taking insulin and having a restricted diet were sufficient to support a 40 [percent] disability rating without restriction of activities, then there would be no reason for “insulin and restricted diet” to be one of the two ways to qualify for a 20 [percent] rating.” Id. Such “successive rating criteria” are those where the criteria for a given higher rating includes the criteria for each lower rating, which means that if one of the criterion for a given rating was not present the Veteran could only receive a rating at a level that did not require that missing criterion. See Tatum v. Nicholson, 23 Vet. App. at 156 (2009). In Camacho, the Court also held “that medical evidence is required to support a finding that a claimant’s diabetes requires regulation of activities.” Camacho, 21Vet. App. at 364. The phrase “regulation of activities” means “avoidance of strenuous occupational and recreational activities.” Camacho, 21 Vet. App. At 362 (quoting 38 C.F.R. § 4.119, DC 7913 (defining the term within the criteria for a 100 percent rating)). Factual Background Turning to the relevant medical evidence, the Veteran’s VA treatment records indicate ongoing treatment of diabetes mellitus, type II. An April 2012 private lab report documented a high hemoglobin A1c level of 7.5 and a hand-written notation by Dr. J.K. noting that the Veteran “needs to start Rx.” In the January 2013 VA examination, the VA examiner noted that his diabetes was managed by a restricted diet, and did not require an oral hypoglycemic agent or insulin. The examiner checked the box that indicated that he requires regulation of activities as part of the medical management of his diabetes mellitus, but provided no examples. The examiner also noted that he visits his diabetic care provider for episodes of ketoacidosis and/or hypoglycemia less than 2 times per month. The examiner noted that the Veteran has not required hospitalization for ketoacidosis and/or hypoglycemia in the past 12 months. The Veteran does not have progressive unintentional weight loss and loss of strength attributable to diabetes. An October 2013 Jersey City VA outpatient treatment note indicates that the Veteran was taking Metformin and Janumet. In November 2013, the Veteran also stated that he wanted to try diet and exercise before considering oral medication. See November 2013 VA treatment records; see also March 2014 VA treatment records. In a September 2014 VA primary care outpatient note, the provider recommended initiation of oral hypoglycemic agents and lipid lowering medications. However, the Veteran did not want to start medications at that time. See also February 2015 and March 2015 VA treatment records. In a February 2015 VA primary care outpatient note, the provider noted that the Veteran’s diabetes is uncontrolled, particularly because he has refused medication. The Veteran was prescribed oral hypoglycemic agent, Metformin, and was to follow low glycemic/fat diet and engage in regular aerobic exercises. In August 2019, the VA examiner noted that the Veteran’s diabetes mellitus, type II is managed by restricted diet, and he is prescribed oral hypoglycemic agents. There was no indication that the Veteran’s diabetes required insulin. Regulation of activities is not required for medical management of his diabetes. The examiner also noted that he visits his diabetic care provider for episodes of ketoacidosis and/or hypoglycemia less than 2 times per month. The examiner noted that the Veteran has not required hospitalization for ketoacidosis and/or hypoglycemia in the past 12 months. The Veteran does not have progressive unintentional weight loss and loss of strength attributable to diabetes. The examiner also noted that the Veteran has erectile dysfunction due to the Veteran’s diabetes. In a November 2019 VA outpatient nursing note, the provider noted that his home blood glucose results revealed high readings and hypoglycemic episodes. Analysis Given the above, the Board finds that a rating in excess of 10 percent prior to September 30, 2014 is not warranted for the Veteran’s diabetes. A 20 percent rating, but no higher, is warranted for the Veteran’s diabetes from September 30, 2014. Prior to September 30, 2014, the evidence shows that management of the Veteran’s diabetes required a restricted diet only. The Board notes that the January 2013 VA examination noted that his diabetes was managed by a restricted diet alone. There was no indication that he was taking an oral hypoglycemic agent during this period of time, thus a 20 percent rating on this basis was not warranted. Additionally, the Board also notes that although the January 2013 VA examiner checked the “yes” box noting that his diabetes also required regulation of activities as part of the medical management of his diabetes the examiner provided no examples even though the VA examiner was requested to provide examples. Moreover, there is no other medical evidence in the record at any point during the appeal period that notes that regulation of activities is part of the Veteran’s medical management of diabetes. More significantly, even if regulation of activities was required at that time, the Veteran did not meet the criteria for a higher rating as he did not require insulin to manage his diabetes as is additionally required for any of the ratings above 10 percent. 38 C.F.R. § 4.119, Diagnostic Code 7913. Thus, as the management of the Veteran’s diabetes only required restricted diet, and possibly regulation of activities, prior to September 30, 2014, a rating in excess of 10 percent for his diabetes is not warranted prior to September 30, 2014. Beginning September 30, 2014, the evidence shows that management of the Veteran’s diabetes required an oral hypoglycemic agent in addition to an already restricted diet. Specifically, in September 30, 2014, a VA provider recommended initiation of oral hypoglycemic agents and lipid lowering medication for his diabetes. The Veteran refused to take the medication at this point. However, an oral hypoglycemic agent was required from this point. Indeed, the VA provider in February 2015 noted that his diabetes was uncontrolled due to his refusal to take medication. As management of the Veteran’s diabetes required a restricted diet and use of an oral hypoglycemic agent from September 30, 2014, a 20 percent rating is warranted from September 30, 2014. However, at no point during the appeal period does the Veteran’s diabetes require insulin, restricted diet, and regulation of activities, which are required for a higher 40 percent rating. As noted above, there is no evidence that management of the Veteran’s diabetes insulin at any time during the appeal period. Further, in the February 2015 outpatient treatment note the examiner documented that the Veteran was to engage in regular aerobic exercise, and the August 2019 examiner specifically found that the Veteran’s diabetes did not require regulation of activities. Thus, regulation of activities was not required for this part of the appeal period. Accordingly, the criteria for a rating greater than 20 percent were not met. On this point, the Board acknowledges that the Veteran reports that his activities are regulated, however, pursuant to Camacho, it is insufficient for the Veteran to make the determination that his activities are restricted due to diabetes. Moreover, as addressed above, a higher rating based on regulation of activities also requires that the Veteran be taking insulin, and there is no evidence that he has been on insulin at any time during the appeal period. Accordingly, entitlement to an initial rating in excess of 10 percent prior to September 30, 2014 for diabetes mellitus, type II is denied, a 20 percent rating from September 30, 2014 to February 27, 2015 for diabetes mellitus, type II is granted, and entitlement to a rating in excess of 20 percent for diabetes mellitus, type II is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.