Citation Nr: 21025255 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 09-10 380 DATE: April 27, 2021 ORDER A rating in excess of 20 percent for diabetes is denied. FINDING OF FACT The Veteran’s diabetes requires the use of insulin and the restriction of diet, but it does not require restriction of activities. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1963 to October 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision of the Agency of Original Jurisdiction (AOJ) that denied the Veteran’s claim for a rating in excess of 20 percent for diabetes. The Board most recently remanded the Veteran’s claim in November 2020 in order to obtain additional VA treatment records. The AOJ has associated such records with the Veteran’s claims file. The Board finds that there has been substantial compliance with the terms of its November 2020 remand, and it will proceed to a decision. INCREASED RATING The Veteran contends that he is entitled to a rating in excess of 20 percent for diabetes. A 20 percent disability rating applies to diabetes requiring insulin and restricted diet, or use of an oral hypoglycemic agent and a restricted diet. A 40 percent disability rating applies to diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent disability rating applies to diabetes 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 evaluated. A 100 percent rating applies to diabetes 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 rated. 38 C.F.R. § 4.119, Diagnostic Code 7913. The phrase “regulation of activities” means that a veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. Additionally, the rating criteria contained in Diagnostic Code 7913 are conjunctive. In other words, the criteria for each higher disability rating include the criteria of each lower disability rating. If any criterion is not met at any particular level, the veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152 (2009). Turning to the facts in this case, the Veteran filed a claim for an increased rating in January 2008. Throughout the period on appeal, the evidence of record, including VA examination reports and VA outpatient treatment records, shows that the Veteran has been prescribed insulin to maintain a satisfactory blood sugar level and that he has been placed on a restricted diet. At issue in this case, then, is whether the Veteran’s diabetes requires the regulation of activities that is associated with a rating in excess of the currently assigned 20 percent evaluation. The Board cannot find that the weight of the evidence supports such a finding. To the contrary, not only does the evidence not show that the Veteran’s diabetes required the regulation of activities, but clinicians regularly advised the Veteran to increase his activity. For example, in January 2011, February 2011, July 2011, September 2017, June 2018, October 2018, January 2020, and August 2020, clinicians counseled the Veteran regarding exercise. In October 2020, the Veteran stated that he was engaging in “more and more” exercise. Similarly, in March 2008, July 2009, March 2017, and January 2021, examiners noted that the Veteran’s diabetes did not require a regulation of activities. Thus, upon review of the record, the Board finds that the weight of the medical evidence of record does not support a finding that the Veteran’s diabetes requires the restriction of activities. To the extent that the Veteran indeed believes that diabetes requires the regulation of activities, the Board notes that laypersons can attest to factual matters of which they have first hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). While the Veteran is competent to report what he perceives through his senses, such as difficulty engaging in activities, he does not have medical training or expertise. Layno v. Brown, 6 Vet. App. 465 (1994). Thus, to the extent that the Veteran indeed believes that diabetes requires the regulation of activities, the Board assigns such beliefs little probative weight, because the weight of the evidence of record indicates that the Veteran has not been prescribed or advised to avoid strenuous occupational and recreational activities due to diabetes. The Board finds that whether the management of diabetes requires the restriction of activities or the avoidance of strenuous occupational and recreational activities is a decision that is medical in nature. The weight of the competent evidence of record shows that restriction of activities is not required due to diabetes. Therefore, the Board finds that a rating in excess of 20 percent for diabetes is not warranted. Consideration has also been given to the Veteran’s assertion that the symptoms of diabetes mellitus more nearly approximate the criteria for a 60 percent rating. Reference was made to his use of insulin three times a day, increases in dosages of insulin in the evening, and quarterly follow-up appointments with his endocrinologist. However, as discussed, the criteria for rating diabetes mellitus is conjunctive. The assignment of a 60 percent rating would still necessitate evidence of regulation of activity, which is not demonstrated by the record. The Board is also unpersuaded by the argument that quarterly follow evaluations for uncontrolled diabetes mellitus is akin monthly diabetic care. There is likewise no evidence suggesting that the Veteran has experienced episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations a year or twice a year. Compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent disability evaluation, with noncompensable complications to be considered as part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). In this case, clinicians, including, for example, the March 2017 and January 2021 examiners, have identified peripheral neuropathy and retinopathy as the Veteran’s diabetic complications. An October 2010 rating decision granted service connection for peripheral neuropathy of the upper and lower extremities, and a September 2011 rating decision continued the existing ratings for such disabilities. The Veteran did not disagree with these determinations, and the proper ratings for these disabilities are therefore not before the Board. In February 2018, the Board, noting that the Veteran had failed to perfect an appeal following a November 2017   statement of the case, found the issue of entitlement to an increased rating for retinopathy not to be on appeal. Consideration of the ratings for the Veteran’s identified diabetic complications are not before the Board. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.