Citation Nr: 21015177 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-09 294 DATE: March 16, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, is denied. FINDING OF FACT The probative medical evidence of record demonstrates that the Veteran's diabetes mellitus, type II has required a restricted diet and one or more daily injections of insulin, but not the regulation of activities for medical management of the disability. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The records reflect that the Veteran served honorably on active duty in the United States Army from November 1966 to September 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This rating decision denied increased disability rating for the service-connected diabetes mellitus, type II, as there was no evidence of worsening to warrant a higher compensable rating after he failed to report to a scheduled VA examination. This appeal was previously remanded in December 2017 and November 2019. The Board finds that there has been substantial compliance with the remand directives, and as such, will proceed with adjudication of the Veteran's claims. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating By way of history, the Veteran was granted service connection for diabetes mellitus and initially assigned a 20 percent disability rating in June 2003. The Veteran subsequently filed a claim for an increased rating in March 2010. The Veteran contends that he is entitled to a rating in excess of 20 percent for his service-connected diabetes mellitus, type II. See Appellate Brief (January 13, 2021). Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. VA should interpret reports of examination in 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. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. 1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, is denied. The Veteran's diabetes mellitus, type II, is evaluated under 38 C.F.R. § 4.119, Diagnostic Code 7913. A 20 percent rating is warranted for diabetes mellitus that requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is warranted 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 per month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating 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 non-compensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). 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." Id. at 362 (quoting 38 C.F.R. § 4.119, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent rating)). The Veteran argues that his currently assigned rating does not accurately reflect the severity of his service-connected diabetes mellitus, type II. Turning to the record, post-service treatment records spanning from March 2010 to June 2020 were included in the evidence of record. This evidence indicates that the Veteran not only had a diagnosis of diabetes mellitus, type II, but that he also had received multiple follow-up assessments to assist in the management of this condition. Additionally, these records show the Veteran’s condition was being managed with a medication regimen including Metformin, Insulin, Glipizide and Lantus. Finally, throughout the period on appeal, the Veteran largely reports trying to follow an appropriate diabetic diet and lifestyle, monitoring his glucose levels a couple times per week, compliance in the use of his diabetes-related medications in the management of his condition, as well as denied hypoglycemia. See Treatment Notes (September 19, 2011 to June 22, 2020). The Veteran submitted private treatment documents in September 2011 addressing the severity of his diabetes mellitus, type II. See Dr. J.S. Physician Statement (September 19, 2011); See Private Treatment Note (September 19, 2011). This private treatment provider, Dr. J.S., indicated the Veteran had been diagnosed with diabetes mellitus, type II, that was being managed with Metformin, Glipizide and Lantus. At that time, the Veteran denied any change in weight, activity and/or vision. The treating physician provided the Veteran’s weight as being 199.0 pounds, height 68.0 inches, blood pressure of 148/74 (sitting/left arm), and a body mass index of 30.25. The examiner also ordered lab work; the results of which included a glucose of 54, a BUN of 16 mg/dL, triglycerides of 230 mg/dL, and a glycohemoglobin A1C of 6.4. Id. Subsequently, Dr. J.S. annotated that the Veteran had been diagnosed with diabetes mellitus, type II, which requires insulin, a restricted diet and regulation of activities. Although this annotation is present in the note, there is no additional evidence offered in support of the opinion that regulation of the Veteran’s activities is required. Dr. J.S. further indicated the Veteran suffered from complications directly due to his diabetes mellitus, type II, to include visual, cardiovascular, neurological, depression and vascular conditions. Id. A BVA Remand Order was issued in December 2017 to determine the current severity of the Veteran’s service-connected diabetes mellitus. See BVA Remand Order (December 27, 2017). Specifically, the examiner was asked to address the aforementioned September 2011 physician statement by Dr. J.S. that the Veteran’s diabetes mellitus requires insulin, restricted diet and regulation of activities, as Dr. J.S. provided no explanation or rationale on how he arrived at this conclusion. Further, the AOJ was asked to address whether the Veteran had experienced episodes of ketoacidosis, hypoglycemic reactions, and/or weight loss. Id. The Veteran was afforded a VA examination in August 2018. The examiner noted the Veteran’s condition was managed by a prescribed oral hypoglycemic agent, restricted diet and one injection of insulin per day. Significantly, the examiner provided that no regulation of activities was required. Additionally, he visited his diabetic care provider less than two times per month, had not been hospitalized over the prior 12 months for ketoacidosis or a hypoglycemic reaction, and had no unintentional weight loss or loss of strength attributable to diabetes mellitus. Id. A complication of diabetes was identified as diabetic peripheral neuropathy, in addition to erectile dysfunction and peripheral vascular disease, which the examiner endorsed are at least as likely as not related to the diabetes mellitus. Notably, service connection is in effect for each of these disabilities already. The examiner also noted an August 2018 A1C test result of 6.4, he noted no functional impact to the Veteran’s ability to work, that the Veteran denied any current or past restrictions of activity, and the Veteran stated he had not been evaluated for hypo or hyperglycemia in the past 15 or 16 years. Significantly, this conclusion was reached after reviewing the physician statement by Dr. J.S.; however, the examiner determined that no evidence was located in the record that supported this conclusion. Id. A second BVA Remand Order was issued in November 2019 as the evidence of record and the Veteran indicated that his diabetes mellitus, type II had worsened since his last VA examination in August 2018. See BVA Remand Order (November 26, 2019). The Veteran claimed that this level of worsening now requires a regulation of his activities. Therefore, a new VA examination was ordered to address the level of severity of all impairment resulting from the diabetes mellitus. Id. In November 2020, the Veteran was afforded another VA examination for his service-connected diabetes mellitus, type II. See Diabetes Mellitus DBQ (November 2, 2020). The examiner noted the Veteran’s condition was managed by a prescribed oral hypoglycemic agent, restricted diet and one injection of insulin per day. Significantly, the examiner provided that no regulation of activities was required. Additionally, the Veteran visited his diabetic care provider less than two times per month, had not been hospitalized over the prior 12 months for ketoacidosis or a hypoglycemic reaction, and no unintentional weight loss or loss of strength attributable to diabetes mellitus. A complication of diabetes was identified as diabetic peripheral neuropathy, with no other noted conditions related to the diabetes mellitus. The examiner also identified a March 2020 A1C test result of 6.9 and a fasting plasma glucose of 136 as of November 1, 2020. Finally, the examiner provided no functional impact to the Veteran’s ability to work. Id. Most recently, in a June 2020 VA treatment note, where the Veteran received treatment for diabetic retinopathy surveillance, the treating physician noted since his last examination in approx. 2004, the Veteran’s A1C has remained stable at 6.9, he continues to manage his condition with medications including Lantus, Glipizide and Metformin and denied hypoglycemia. See Diabetic Retinopathy Surveillance Note (June 22, 2020). Further, in a March 2019 treatment note, although the treating physician indicated that the Veteran’s A1C had increased from 6.4 to 7.7, the Veteran actually attributed this increase to his diet and lifestyle. See Treatment Note (March 4, 2019). Thereafter, a September 2019 treatment note indicated that the Veteran’s A1C had improved to 6.9. See Treatment Note (September 16, 2019). Ultimately, the treatment records are consistent with the findings of the VA examinations, and showed no evidence of regulation of the Veteran's activities. As noted, a rating in excess of 20 percent requires the regulation of activities to treat diabetes mellitus. This has simply not been shown by the record at any time, and because a schedular rating in excess of 20 percent requires the regulation of activities to treat diabetes mellitus, a higher disability rating is not warranted at any time during the course of the Veteran's appeal. The Board finds no indications that the Veteran's activities actually required regulation, ordered by a medical professional, to control his diabetes. Though one private provider indicated an opinion that it did, this was not supported by any underlying reason, nor was it evidenced in the Veteran’s actual treatment records. Had it been the case that such regulation was required, this would have been borne out in the treatment records. Moreover, there is no evidence that the Veteran has experienced episodes of ketoacidosis or hypoglycemic reactions requiring either hospitalization, or twice a month visits to a diabetic care provider. Therefore, there is no probative evidence to support a 40, 60, or 100 percent schedular rating under Diagnostic Code 7913. Accordingly, the Board finds the preponderance of the evidence shows restricted diet and one or more daily injections of insulin, but not the regulation of activities as part of the Veteran's diabetic treatment. See 38 C.F.R. § 4.119, DC 7913. Therefore, the Veteran is not entitled to a disability rating in excess of 20 percent at any time during the appeal period and the claim must be denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Associate Counsel Donna M. Williams 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.