Citation Nr: 21021694 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 13-26 669 DATE: April 13, 2021 ORDER The claim of entitlement to a disability rating in excess of 40 percent for diabetes mellitus is denied. REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 27, 2016, is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s type II diabetes mellitus required insulin, a restricted diet, and regulation of his activities, but the Veteran did not have 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. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for type II diabetes mellitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from August 1978 to February 2005. In July 2020, this claim was remanded for additional development. That development was completed, and the case has since been returned to the Board for appellate review. In January 2021, the RO increased the disability rating for his diabetes mellitus from 20 percent to 40 percent, effective December 13, 2010. Despite the increased disability rating, the Veteran’s appeal remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Accordingly, the issue remains in appellate status. The Board has characterized the issue on appeal accordingly. A claim for TDIU has been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim of entitlement to TDIU for the period beginning on June 27, 2016, has been rendered moot by the assignment of a total rating and special monthly compensation (SMC) under 38 U.S.C. § 1114(l) during such period. A TDIU is moot in such a circumstance unless it can assist the Veteran in qualifying for SMC pursuant to 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). However, the Veteran is already receiving SMC at a higher rate. Thus, the issue of entitlement to a TDIU for the period beginning on June 27, 2016 is moot. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to a disability rating in excess of 40 percent for type II diabetes mellitus. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath v. Derwinski, 1 Vet. App. at 589, the Board has reviewed all evidence of record pertaining to the history of the service-connected disability under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. In addition, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). As such, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claims. Diabetes Mellitus In this case, the Veteran’s service-connected type II diabetes mellitus is currently assigned a 40 percent disability rating pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 40 percent disability evaluation is contemplated for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent disability evaluation is warranted for diabetes mellitus requiring insulin, a 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 evaluation is contemplated for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus progressive loss of weight and strength or complications that would be compensable if separately evaluated. The Court has held that, 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.” Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent rating)). Successive rating criteria, such as Diagnostic Code 7913 for diabetes mellitus, is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). For example, the diagnostic code for diabetes mellitus (Diagnostic Code 7913) is successive because each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Camacho, 21 Vet. App. at 366. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher rating for type II diabetes mellitus. The evidence demonstrates that the Veteran’s diabetes mellitus required insulin, restricted diet, and regulation of activities. However, the evidence does not show that the Veteran has 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. The claims file includes pre-written statements completed by private physician, J.S., M.D., in December 2010 and September 2012. Dr. S. checked boxes to indicate that the Veteran’s diabetes mellitus required insulin, restricted diet, and regulation of activities. Dr. S. did not check the available boxes for diabetes mellitus manifested by ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. During a March 2011 VA examination, the Veteran did not report diabetic ketoacidosis that required hospitalization or hypoglycemia. A June 2015 VA examination report noted that the Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions two times per month. He also had progressive unintentional weight loss due to diabetes mellitus. His diabetic complications included diabetic peripheral neuropathy and diabetic retinopathy. The October 2017 and October 2019 VA examination reports showed that the Veteran did not see his diabetic care provider more than twice per month for episodes ketoacidosis or hypoglycemia. The examiner noted that the Veteran did not have any episodes of ketoacidosis or hypoglycemia requiring hospitalization over the prior 12 months. There was also no loss of strength and weight. The October 2019 VA examiner reviewed the Veteran’s medical records and found that there was no documentation of ketoacidosis or hypoglycemia, nor hospitalizations or progressive weight loss in the records reviewed to date. Pursuant to the July 2020 Board Remand, a VA medical opinion was obtained in October 2020. In the October 2020 VA medical opinion, the examiner indicated that the Veteran’s diabetes mellitus required insulin, restricted diet, and regulation of activities. The examiner identified diabetic complications of retinopathy, neuropathy, and erectile dysfunction, which are all separately rated. VA and private treatment records during this period documented ongoing treatment for diabetes mellitus. In November 2018, the Veteran denied recent low blood glucose readings. An October 2019 VA diabetology note showed that the Veteran was seen for uncontrolled diabetes. It was noted that his insulin was adjusted in June 2019 to address postprandial hyperglycemia. The doctor noted significantly improved glucose control, improvement of his dietary habits, less insulin required, and weight loss. VA and private treatment records showed that he was seen for diabetes mellitus in July 2010, August 2010, December 2010, May 2014, January 2015, October 2015, June 2016, January 2017, September 2018, October 2018, November 2018, October 2019, and February 2020. However, the evidence does not show that he was seen at least twice a month for episodes of ketoacidosis or hypoglycemic reactions. Accordingly, the Board finds that the criteria for the next higher rating of 60 percent have not been met or approximated at any point during the appeal period. See 38 C.F.R. § 4.119, Diagnostic Code 7913. REASONS FOR REMAND The claim of entitlement to a TDIU prior to June 27, 2016, is remanded. The record does not contain a VA Form 21-8940 or comparable information to determine the Veteran’s employment and educational history. On remand, the Veteran should be provided a VA Form 21-8940 and the AOJ should undertake all appropriate development and then adjudicate the Veteran’s TDIU claim. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the AOJ must provide the Veteran with proper VCAA notice regarding the evidence and information necessary to substantiate his TDIU claim. He should also be requested to complete and return a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). 3. Then, the AOJ should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. McKinley, 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.