Citation Nr: 21022061 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 20-02 644 DATE: April 14, 2021 ORDER A rating higher than 20 percent for diabetes mellitus prior to February 23, 2012, is denied. REMANDED Service connection for loss of front bottom teeth, to include as secondary to service-connected diabetes mellitus is remanded. FINDING OF FACT Prior to February 23, 2012, the Veteran’s diabetes mellitus required only restricted diet and an oral glycemic agent. CONCLUSION OF LAW Prior to February 23, 2012, the criteria for a disability rating higher than 20 percent for diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Air Force from August 1965 to January 1969 and from January 1971 to January 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a virtual hearing before the undersigned in February 2021. Although a Statement of the Case was not issued for the issue of a rating higher than 20 percent for diabetes mellitus, type II prior to February 23, 2012, the Board took testimony on that issue and will adjudicate it. Percy v. Shinseki, 23 Vet. App. 37 (2009). 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. Generally, except as otherwise provided, the effective date of an increase in disability is either date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An effective date could be awarded up to one year earlier than the date of claim, if it is factually ascertainable based on all evidence of record that an increase in disability had occurred. 38 C.F.R. § 3.400(o)(b). The Veteran contends he should be assigned a 40 percent rating for diabetes mellitus prior to February 23, 2012. Specifically, he contends his 40 percent rating should be assigned effective the date service connection was granted for diabetes mellitus. For the following reasons, the Board disagrees. The Veteran filed his claim for an increase rating for his diabetes mellitus on February 23, 2012. As such, the earliest date available for a 40 percent rating for diabetes mellitus is February 23, 2011. Prior to February 23, 2012, the Veteran’s diabetes mellitus was rated as 20 percent disabling under diagnostic code (DC) 7913. 38 C.F.R. § 4.119. The code provides a 20 percent rating when diabetes requires a restricted diet plus either insulin or an oral hypoglycemic agent. A higher 40 percent rating is assigned when diabetes also requires the regulation of activities. “Regulation of activities” is defined in the code as “avoidance of strenuous occupational and recreational activities.” In an October 2002 rating decision, the Veteran was granted service connection for diabetes mellitus and assigned a 20 percent rating effective August 6, 2001. The Veteran did not appeal this decision nor was evidence received within a year that suggested a higher rating was warranted. As such, the decision is final. In February 2012, the Veteran filed a claim for an increased rating for his service-connected diabetes mellitus. At a May 2012 VA examination, the examiner found that the Veteran’s diabetes required the regulation of activities, oral hypoglycemic agents, and daily insulin injections. The Veteran also submitted two letters from his treating physician describing the Veteran’s treatment for his diabetes. The physician stated that the Veteran takes Lantus and Glucophage daily, and that he is on a restricted diet with regulation of activities. One of these letters is undated and the other is dated July 2016. In neither of the letters does the physician state when this treatment was started for the Veteran. The Veteran has also submitted treatment records for his diabetes, but none of these records state that regulation of activities is required for treatment of his diabetes. Based on the information above, the Board cannot award a 40 percent rating earlier than the date of the Veteran’s claim. Though the Veteran testified that his diabetes has been treated by insulin, restricted diet, and restricted activities since 2001, the record does not reflect this. The record includes September 2002 VA examination that found the Veteran takes Glucophage twice a day. The examiner did not find that the Veteran’s diabetes required regulation of activities or restricted diet. As stated above, the Veteran has submitted treatment records for his diabetes, but these treatment records do not state that restricted diet or regulation of activities is needed for his diabetes. The Board affords more probative weight to the findings of the September 2002 VA examiner and the Veteran’s contemporary treatment records than his February 2021 testimony. Without evidence of the Veteran’s diabetes being treated by regulation of activities prior to February 23, 2012, the Board cannot award a 40 percent rating any earlier. As such, the Board finds the preponderance of the evidence to be against the claim. As a preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 C.F.R. § 4.3. REASONS FOR REMAND Loss of Front Bottom Teeth The Board notes that normally, loss of teeth is not considered a disability for compensation purposes. 38 C.F.R. § 3.381(b). However, loss teeth may be service connected for purposes of seeking outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302 (1993) (A claim for service connection is also considered to be a claim for VA outpatient treatment). At his February 2021 hearing, the Veteran raised a contention that his loss of front bottom teeth is secondary to his service-connected diabetes. The Veteran has not been provided a VA examination in regard to this claim. As such, a remand is necessary to provide the Veteran with a VA examination. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his loss of front bottom teeth. The claims file should be made available to the examiner and reviewed in conjunction with the examination. The examiner must opine regarding whether the Veteran’s loss of front bottom teeth is at least as likely as not (50 percent or greater probability) proximately due to or aggravated beyond its natural progression by his diabetes. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, 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.