Citation Nr: 21022037 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-20 311 DATE: April 14, 2021 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to an initial rating of 30 percent for diabetic nephropathy is granted, effective July 15, 2014. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran’s diabetes required insulin injections and restricted diet, but did not require regulation of activities. 2. Beginning July 15, 2014, the Veteran had diabetic nephropathy with recurring microalbumin, plus hypertension separately rated as 10 percent disabling. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 2. The criteria for entitlement to a rating of 30 percent for diabetic nephropathy have been met since July 15, 2014. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.115a, 4.115b, 4.119, Diagnostic Code 7541. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to January 1970, from January 1974 to January 1978, and from January 1978 to August 1991. The Veteran passed away in August 2016, and his surviving spouse has been substituted as the Appellant. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously remanded in October 2018 to obtain outstanding medical records, followed by an addendum medical opinion. The Board finds that the RO has complied with these remand instructions, and therefore may proceed with a decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to increased rating for diabetes mellitus Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Diabetes mellitus is rated under Diagnostic Code 7913, which 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’s favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). In this case, VA and private treatment records show treatment for the Veteran’s diabetes mellitus with restricted diet and insulin injections (and, for a time, oral hypoglycemic agents) only. Although records show that lifestyle changes were recommended, regulation of activities (avoidance of strenuous occupational and recreational activities) was not shown. The Board acknowledges lay and medical evidence that the Veteran experienced worsening pain that interfered with his ability to perform activities, and that some of this pain was attributable to diabetic neuropathy. However, the Veteran is separately service connected for bilateral peripheral neuropathy of the lower extremities, and bilateral ulnar neuropathy of the upper extremities; the effect of diabetic neuropathy on the Veteran’s ability to function is factored into those separate ratings, and the same manifestation of a disability cannot be evaluated multiple times under separate ratings. See 38 CFR § 4.14. The November 2019 addendum opinion to the March 2011 VA Examination found that the Veteran’s diabetes was controlled with insulin injections and a restricted diet during the period on appeal. The examiner did not find evidence in the medical record that the Veteran’s diabetes management involved regulation of activities (avoidance of strenuous occupational and recreational activities), and after a review of the Veteran’s laboratory results, the examiner found it less likely than not that the Veteran’s diabetes would have required regulation of activities. The medical evidence of record is against a finding that regulation of activities due to diabetes was required at any point during the period on appeal. Accordingly, a rating in excess of 20 percent for diabetes mellitus is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to initial rating for diabetic nephropathy Diabetic nephropathy is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7541. This Diagnostic Code contemplates renal involvement in diabetes mellitus and directs the rater to evaluate this disability as renal dysfunction. See 38 C.F.R. § 4.115a. Regarding renal dysfunction, a noncompensable rating is assigned for albumin and casts with history of acute nephritis, or hypertension noncompensable under Diagnostic Code 7101. A 30 percent rating is assigned for 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 under Diagnostic Code 7101. A 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating is warranted for 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. A 100 percent rating is warranted for 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. Id. The November 2019 addendum opinion to the March 2011 VA Examination noted that the Veteran was diagnosed with diabetic nephropathy in July 2014. Subsequently, a September 2020 VA examiner listed laboratory tests in June 2013, July 2014, and August 2015 that showed urine microalbumin. The examiner also noted that the Veteran took continuous medication to manage his kidney condition. The Veteran has been in receipt of a 10 percent rating for hypertension under Diagnostic Code 7101 since September 2000. Because the Veteran had diabetic nephropathy with recurring microalbumin, plus hypertension rated at least 10 percent disabling, a 30 percent rating for diabetic nephropathy is warranted. A higher evaluation of 60 percent is not warranted because the medical evidence does not show edema, hypertension at least 40 percent disabling, or a definite decrease in kidney function. Entitlement to a 30 percent rating for diabetic nephropathy is granted effective July 15, 2014, the date the Veteran was diagnosed with diabetic nephropathy. See 38 CFR § 3.400. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sundquist, Shermila 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.