Citation Nr: 21023229 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-25 392A DATE: April 20, 2021 ORDER The claim of entitlement to a rating in excess of 20 percent for diabetes mellitus type II (DMII) is denied. FINDING OF FACT The Veteran’s DMII required only restricted diet and one or more daily injection of insulin and oral glycemic agent during the period on appeal. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for DMII have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1971 to November 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2011 and June 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Procedurally, the Veteran was initially granted service connection for DMII in the November 2011 rating decision, however, the RO later severed that entitlement to service connection in the June 2016 decision. On appeal of the matter, the Board remanded the claim for further development, noting that the RO had not issued a Statement of the Case (SOC) regarding the severance. As the outcome of the claim for an increased rating for DMII was inextricably intertwined with the issue of whether the severance of service connection for the condition was proper in the first place, the Board remanded the DMII claim for increase at the same time. See May 2018 Board Decision. In May 2019, the Board again remanded the claim of entitlement to a rating in excess of 20 percent for DMII as well as the matter of whether severance of service connection for DMII was proper. In May 2020, the RO issued a rating decision reestablishing service connection for DMII but denied entitlement to a rating in excess of 20 percent. See also January 2021 Supplemental SOC. The Board concludes that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. The claim of entitlement to a rating in excess of 20 percent for DMII. The Veteran contends that he is entitled to a rating higher than 20 percent for his DMII. See November 2012 Notice of Disagreement (NOD). Specifically, he contends that, while he meets the criteria for a 20 percent rating, he also meets the criteria for a higher rating. Id. Disability ratings are based upon VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In a claim for a greater initial rating after an award of service connection, all evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, 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, 126 (1999). VA’s determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s DMII is rated under Diagnostic Code (DC) 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 diabetes requires one or more daily injection of insulin, restricted diet, and regulation of 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, DC 7913 (Note 1). Because DC 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). 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 diabetes mellitus required only restricted diet and one or more daily injection of insulin and an oral glycemic agent during the period on appeal. According to the medical evidence of record, including the March 2011 and January 2021 VA examinations, the Veteran did not require regulation of activities due to his DMII. Further, the VA examinations and VA medical records do not show that the Veteran had episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. The Board finds the VA examination evidence probative, as it is consistent with medical treatment evidence of record. It is also clear from the remarks section of the January 2021 evaluation report that the examiner considered the extent and impact of the Veteran’s DMII on his overall functioning. Additionally, the Veteran has not asserted that the examination evidence is inadequate or incorrect in specific findings. As such, the medical evidence of record is against a finding that regulation of activities was required during the period on appeal. The January 2021 VA examination identified additional conditions and complications related to the Veteran’s diabetes, including erectile dysfunction, skin conditions, and hypertension, which are already service connected. See January 2021 Rating Decision; see also 38 C.F.R. § 4.119, DC 7913 (Note 1). The Board notes that the Veteran is also already in receipt of a total disability rating based on individual unemployability. The Board acknowledges the Veteran’s contention of record that he has “to avoid strenuous occupation and recreational activities” due to difficulty with his blood sugar levels, and his assertion that records from his primary care provider would document that those issues. See June 2012 Notice of Disagreement. However, review of the Veteran’s VA treatment records, including those from his primary physician, Dr. B.S.A., do not indicate to the Board that the Veteran’s activities required regulation. Instead, these records indicate that Dr. B.S.A. regularly reviewed with the Veteran “diet and exercise and other healthy living habits” and occasionally noted when the Veteran had not been exercising. See e.g., May 2011 VA treatment records. The Board finds these contemporaneous medical records by the Veteran’s treating provider probative. The Board finds no medical evidence to show that the Veteran’s activities are regulated due to his diabetes, which is required to support a rating in excess of 20 percent. Johnson, 30 Vet. App. at 247. (Continued on the following page.) Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent for diabetes mellitus during the period on appeal. Hannah Fisher Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, 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.