Citation Nr: 21023948 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 19-06 758 DATE: April 21, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II is denied. FINDING OF FACT The Veteran’s diabetes mellitus requires no more than treatment with oral hyperglycemic agent and a restricted diet; there is no regulation of activities by a medical professional. CONCLUSION OF LAW The criteria for an initial rating higher than 20 percent for diabetes mellitus are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from March 1968 to January 1970, to include service in Vietnam. His decorations include the Combat Action Ribbon. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans' Affairs (VA) Regional Office. The claim was remanded by the Board in August 2019 for further development. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II Legal Criteria Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that 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 diabetes mellitus is rated under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913. This diagnostic code provides that when diabetes mellitus requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet, a 20 percent evaluation is merited. Id. When insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) are required, it is evaluated as 40 percent disabling. Id. Diabetes mellitus requiring 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 rated, is rated 60 percent disabling. Id. Diabetes mellitus requiring 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. Id. Note (1) following the rating criteria provides that compensable complications of diabetes mellitus are rated separately unless they are used to support a total disability rating. Id. at Note (1). The criteria for ratings higher than 20 percent for diabetes mellitus are conjunctive not disjunctive., there must be insulin dependence and restricted diet and regulation of activities. “Regulation of activities” is defined by Diagnostic Code 7913 as the “avoidance of strenuous occupational and recreational activities.” Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). After review of the evidence of record, to include the December 2017 and December 2019 VA examinations, the Board finds that the Veteran’s diabetes mellitus does not meet the criteria associated with an increased evaluation. Although the record establishes that the Veteran’s diabetes mellitus is treated with an oral hyperglycemic agent and a restricted diet, the evidence does not establish regulation of activities. Treatment records do not document any instance where the Veteran’s diabetic care providers advised him to avoid occupational and recreational activities due to diabetes mellitus. Further, the examinations do not reflect the Veteran with episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. The Veteran’s diabetes mellitus does not require daily injections of insulin. The record does not establish that the Veteran’s disability meets the criteria associated with any other increased rating under Diagnostic Code 7913. While there may have been day-to-day fluctuations in the manifestations of the Veteran’s service-connected diabetes mellitus, the evidence shows no distinct periods of time during the appeal period when the Veteran’s service-connected diabetes mellitus varies to such an extent that a rating greater or less than the 20 percent is warranted. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, the Board notes that the Veteran has asserted that he has experienced symptoms affecting the skin, eyes, and extremities that he believed are related to his service connected diabetes mellitus. During the pendency of this appeal the Veteran has been service-connected for bilateral lower peripheral neuropathy associated with his diabetes mellitus. The Veteran has not disagreed with the June 2019 rating decision providing the Veteran with service connection. Further, December 2019 VA examination reflect the Veteran with dermitis. However, the examination report notes that upon examination there is no indication that the Veteran has a skin condition associated with his diabetes mellitus. Lastly, the December 2019 VA examination noted no evidence of diabetic retinopathy or any other diabetic related ocular findings. As the preponderance of the evidence is against the appeal, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brandon A. Williams, 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.