Citation Nr: 21016180 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 16-48 251 DATE: March 22, 2021 ORDER Entitlement to an initial disability rating greater than 20 percent for diabetes mellitus type II is denied. REMANDED Entitlement to separate ratings for diabetic retinopathy and nephropathy. FINDING OF FACT The Veteran’s diabetes mellitus required restricted diet and daily injections (more than 1 per day) of insulin and did not require restricted diet during the period on appeal. CONCLUSION OF LAW The criteria for 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 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1986 to June 1992, and March 1995 to July 2014. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision (RD) issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a hearing was held in March 2019 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board remanded the Veteran’s claim in August 2019 to obtain outstanding treatment records and a new VA examination to assess the current severity level of the Veteran’s diabetes mellitus (DM) type II. Increased Rating Entitlement to an initial disability rating greater than 20 percent for diabetes mellitus type II The Veteran contends that he is entitled to a higher rating because his DM type II has worsened to the extent that his diet and activities are restricted. See March 2019 Board hearing transcript. 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). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of 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. A 100 percent rating is warranted when diabetes 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. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran’s disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran’ favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran’s diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran’s DM Type II required restricted diet and one or more daily injections of insulin during the period on appeal. To point, upon remand, the November 2019 VA examiner indicated that the Veteran’s disability does not require regulation of activities. Upon review of the record, the Board finds that the Veteran’s treatment records indicate that he was often prescribed exercise to help with his disability, as well as with his obesity. See June 2018 VA treatment record; November 2019 VA treatment record; June 2017 VA examination. Here, the Board notes that in order to warrant a higher 40 percent rating, the evidence must show the Veteran's DM type II requires regulation of activities. See 38 C.F.R. § 4.119, DC 7913. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities and the Court has held that DC 7913 requires medical necessity to show that occupational and recreational activities have been restricted to manage diabetes mellitus. See Camacho v. Nicholson, 21 Vet. App. 360 (2007). In contrast to regulation of activities, as previously defined, the record reveals that the Veteran has actually been prescribed exercise contrary to being restricted in doing the same. Id. Additionally, while there is a VA medical opinion of record, received in February 2015, indicating that the Veteran’s activities and exercise are regulated, the opinion is a blanket statement without a supporting rationale explaining to what extent the Veteran’s occupational and recreational activities have been restricted to manage his disability, and therefore the Board affords the medical opinion limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly-reasoned opinion). The Veteran is competent to report reduction in activities and his reports are found to be credible; however, the preponderance of the medical evidence of record weighs against finding that regulation of activities was required during the period on appeal, as that term has been interpreted/defined by the Court in Camacho. Id.; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); March 2019 Board hearing transcript. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal, and the Veteran’s claim for an increased rating for his DM type II disability must be denied. REASONS FOR REMAND Entitlement to separate ratings for diabetic retinopathy and nephropathy The record reveals that the Veteran suffers from complications of his DM type II disability, namely heart disease, diabetic retinopathy and diabetic nephropathy, of which the Veteran is already service-connected and compensated for congestive heart failure. See July 2017 RD. Relative to the Veteran’s diabetic retinopathy and nephropathy, Diagnostic Code 7913, note (1) for diabetes mellitus, 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. 38 C.F.R. § 4.119. Therefore, the Veteran may only be granted a separate rating for his DM type II complications when the evidence indicates that they are compensable under their own respective diagnostic codes (DCs 6040, 7541). Here, the Board finds that the most recent VA examinations of record did not indicate any complications relative to the Veteran’s service-connected DM type II condition, and yet the record reveals contrary findings, specifically that the Veteran does suffer from diabetic retinopathy and nephropathy. See June 2014 VA examination; October 2017 VA treatment record. Accordingly, due to the conflicting nature of the medical evidence of record, and in order to adequately assess the severity of the Veteran’s diagnosed complications, to include determining as to whether separate ratings are warranted, the Board finds that another remand is unfortunately required prior to the adjudication of this issue raised by the evidence of record. The matters are REMANDED for the following action: 1. Associate with the Veteran’s claims file any outstanding VA treatment records since November 2019. (Continued on the next page)   2. Schedule the Veteran for a VA examination to assess the current severity levels of his DM type II complications (diabetic retinopathy and diabetic nephropathy conditions). See June 2014 VA examination (indicating a diagnosis of diabetic retinopathy); October 2017 VA treatment record (indicating a diagnosis of diabetic nephropathy). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.