Citation Nr: 21024645 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-37 668 DATE: April 23, 2021 ORDER A rating higher than 40 percent for diabetes mellitus is denied. FINDING OF FACT The Veteran’s diabetes mellitus has not resulted in episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. CONCLUSION OF LAW The criteria for a rating higher than 40 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to September 1970. This case returns to the Board of Veterans’ Appeals (Board) after remands to the agency of original jurisdiction (AOJ) in April 2020 and November 2020. The AOJ substantially complied with the Board’s remand instructions, and the claim is ready for further review. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted previously, the Veteran testified before the undersigned Veterans Law Judge in July 2018. However, due to audio malfunctions, no transcript from the July 2018 hearing is available. In March 2020, the Veteran declined to appear for another Board hearing, and opted to have his case decided on the evidence of record. Increased Rating for Diabetes Mellitus The Veteran seeks a rating higher than 40 percent for service-connected diabetes mellitus with hypertension and erectile dysfunction. After careful review, the Board finds that an increased rating is not warranted. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. VA must evaluate all of the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Diabetes mellitus is evaluated 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 40 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities (i.e., avoidance of strenuous occupational and recreational activities). In this case, the Board granted a 40 percent rating in April 2020. See also August 2020 rating decision (assigning 40 percent rating, effective February 4, 2014). 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. 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. Id., 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). The question before the Board now is, essentially, whether the Veteran’s diabetes results in episodes of ketoacidosis or hypoglycemic reactions requiring at least one or two hospitalizations per year, or at least twice a month visits to a diabetic care provider. The most probative evidence of record shows that it does not. The Veteran filed for an increased diabetes rating in February 2014. Since then, he has received three VA examinations in connection with the claim. The May 2014, February 2017, and December 2020 examiners interviewed the Veteran in person and reviewed his medical records. The Board finds the examiners’ reports highly probative. All three VA examiners indicated that the Veteran visits his diabetic care providers less than two times per month for episodes of ketoacidosis or hypoglycemic reactions. The Veteran does not appear to dispute these findings. Notably, he told the December 2020 examiner that he goes to his provider every three to six months. The available medical records do not show otherwise. All three VA examiners likewise indicated that the Veteran had no episodes of ketoacidosis or hypoglycemic reactions that required hospitalization over the past 12 months. These findings are consistent with the medical records on file. In his March 2020 statement, the Veteran indicated that he received treatment for hypoglycemia at Cookeville Regional Medical Center (CRMC) on four dates: August 1, 2017; April 10, 2019; June 30, 2019; and March 11, 2020. On the first two dates, he reports that he “collapsed [with] low blood sugar.” Additionally, in a May 2020 statement, he reported that he was treated for hypoglycemia at home by “Dr. S. B.” and EMTs on September 26, 2019. By his own account, he was not transported to the hospital during the September 2019 episode. See VA Form 21-4138. The Board thus finds that the September 2019 episode did not “require hospitalization” as set forth in the diagnostic code. Nevertheless, he contends that he has episodes of hypoglycemic reactions requiring at least 1-2 hospitalizations per year. Id. Medical records from CRMC and other providers contradict the Veteran’s assertion about hospitalizations for hypoglycemia. They also support the VA examiners’ findings. On July 26, 2017, CRMC emergency department personnel treated the Veteran for a head injury. The Veteran submitted an annotated excerpt of the treatment report, which was originally printed on August 1, 2017, along with his March 2020 statement; it is clear from the records on file that the incident in question occurred in late July, not August. The full treatment report reflects that he struck his head against a nightstand at home, resulting in a 3-centimeter laceration above the left eyebrow. He had “no apparent associated signs or symptoms,” and reportedly had “not experienced similar symptoms in the past.” The Veteran was not hospitalized for hypoglycemia, and there is no indication in the treatment report that the July 2017 fall/head injury was due to low blood sugar, as he now contends. As a layperson, he is competent to report subjective symptoms, like sweating or dizziness, which could be (but are not necessarily) attributable to low blood sugar. He is also competent to report readings from a glucometer or blood sugar monitor intended for home use, for example. In this instance, he has not identified specific symptoms, glucometer readings, or any other evidence to corroborate his statement that he collapsed and hit his head due to a hypoglycemic reaction. Instead, the contemporaneous medical records show treatment for a laceration and acute head pain, without any reference to hypoglycemia. The Board finds this evidence more probative than the Veteran’s after-the-fact lay statement. Apart from the Veteran’s statement, there is no evidence that he was treated, let alone hospitalized, for a hypoglycemic reaction on or around April 10, 2019. Nor is there other evidence that he “collapsed with low blood sugar.” On April 9, 2019, a cardiologist at Tennessee Heart (part of CRMC) saw the Veteran for a follow-up office visit. The Veteran had been admitted for an episode of ventricular tachycardia one month earlier. At the office visit, he reported having two recent episodes of early morning diaphoresis (excessive sweating) and “feeling poorly” that he effectively treated with orange juice. The Veteran assumed these episodes were due to low blood sugar; he did not report that they required hospitalization. He was not treated for hypoglycemia during the office visit. A single-page excerpt from another, undated CRMC treatment report—apparently printed on April 10, 2019—is included with the March 2020 statement. This excerpt lists “Type 2 diabetes mellitus without complications” (which the Veteran circled) at the top of his medical problems list. The excerpt does not document hospitalization for a hypoglycemic reaction in April 2019. The Veteran’s lay statements must be weighed against other evidence, including the absence of pertinent records. See e.g. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (the Board may consider internal consistency, facial plausibility and consistency with other evidence when evaluating the credibility of lay evidence). His CRMC records appear to be complete. Therefore, in the absence of documentation, the Board does not find his statement about treatment at CRMC for a hypoglycemic reaction on April 10, 2019 to be credible. CRMC records confirm that the Veteran went to the emergency department on June 30, 2019. According to the treatment report, he presented with symptoms of weakness and dizziness. Although he reported “originally thinking the issue was low blood sugar,” he was not treated for a hypoglycemic reaction. Instead, he was diagnosed with dehydration, weakness, and dizziness. The treating physician indicated that the cause of the weakness and dizziness was unknown. Again, the contemporaneous medical evidence does not show that the Veteran was hospitalized for a hypoglycemic reaction. The Board finds this evidence more probative than his unsupported lay statement. On March 11, 2020, the Veteran returned to the CRMC emergency department. His family reported a decreased level of consciousness, diaphoresis, and hypoglycemia. Prior to arrival, he received EMS care, including dextrose, with improved response. His symptoms resolved while at the emergency department. The treatment report lists the primary diagnosis as “diabetes mellitus due to underlying condition with hypoglycemia without coma (manifestation).” However, the treatment report also makes clear that the March 2020 episode was not a hypoglycemic reaction requiring hospitalization. The treating physician “discussed with the patient/guardian in detail that at this point there is no indication for admission to the hospital,” but “if the symptoms persist or worsen the patient needs to return immediately for re-evaluation.” In other words, the physician determined that he did not require hospitalization. The Board finds this evidence highly probative. The Board finds no other evidence, lay or medical, of hypoglycemic reactions requiring hospitalization during the period on appeal. Medical records submitted along with the 2014 claim note that he had no episodes of hypoglycemia. See January 2014 office visit note. In a September 2017 letter, Dr. S.B. wrote that the Veteran collapsed from a hypoglycemic attack on August 24th, that he responded to glucose, and that he later followed up with his endocrinologist for definitive therapy. Dr. S.B.’s letter does not suggest that the Veteran required hospitalization. In sum, the preponderance of evidence is against finding that the Veteran’s diabetes has resulted in episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A rating higher than 40 percent is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.