Citation Nr: 21026561 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-18 580 DATE: May 3, 2021 ORDER Entitlement to a disability rating in excess of 20 percent prior to March 7, 2019 and in excess of 40 percent thereafter for diabetes mellitus type II (hereinafter "diabetes mellitus") is denied. FINDINGS OF FACT 1. Prior to March 7, 2019, the Veteran's diabetes mellitus required an oral hypoglycemic agent, insulin, and a restricted diet, but not regulation of activities. 2. Beginning March 7, 2019, the Veteran's diabetes mellitus has required an oral hypoglycemic agent, insulin, a restricted diet, and regulation of activities, but he has not had any 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 disability rating in excess of 20 percent for diabetes mellitus prior to March 7, 2019 and in excess of 40 percent thereafter are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from January 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his May 2015 VA Form 9, the Veteran requested a videoconference hearing before the Board. However, in a September 2017 Statement in Support of Claim, the Veteran withdrew his request for a hearing. As such, the Board will proceed with adjudicating the claim without a hearing. This matter was previously before the Board in July 2018, at which time the Board remanded the matter for additional development. In a March 2020 rating decision, the RO awarded an increased rating of 40 percent for diabetes mellitus, effective March 7, 2019. The issue on appeal has been recharacterized to reflect this award. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus prior to March 7, 2019 and in excess of 40 percent thereafter Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon 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 is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Relevant here, the Veteran's diabetes mellitus is rated under DC 7913. Effective December 10, 2017, VA revised the criteria for rating disabilities of the endocrine system (including diabetes mellitus). The Veteran's increased rating claim was filed in January 2013. When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of his claim under the criteria that is more advantageous, although the revised rating criteria may be applied only prospectively from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110(g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the former rating criteria (pre-2017) govern the claim for the period prior to December 10, 2017, and for the period from December 10, 2017 to the present, the severity of the Veteran's diabetes mellitus must be considered under both the former (pre-2017) and revised (post-2017) rating criteria. The rating assigned must be based on whichever rating criteria is more favorable to the Veteran. See Kuzma, 341 F.3d 1327. Under the former rating criteria, effective prior to December 10, 2017, a 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is assigned for 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 evaluated. A 100 percent rating is assigned for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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. See 38 C.F.R. § 4.119, DC 7913 (effective prior to December 10, 2017). Under the revised rating criteria, effective December 10, 2017, a 20 percent rating is assigned for diabetes mellitus requiring one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is assigned for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes mellitus requiring 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 assigned for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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. See 38 C.F.R. § 4.119, DC 7913 (effective December 10, 2017). Under both former and revised rating criteria, Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. The term "regulation of activities" is defined in the rating criteria for a 100 percent disability rating under DC 7913 as "avoidance of strenuous occupational and recreational activities." Although not specified in the rating criteria, the Board finds that this definition also applies to the "regulation of activities" discussed in the 40 percent and 60 percent disability ratings under DC 7913. Additionally, medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). Further, in light of the conjunctive "and" in the criteria for a 40 percent disability rating under DC 7913, all criteria must be met to establish entitlement to a 40 percent rating. See, e.g., Heuer v. Brown, 7 Vet. App. 379, 385 (1995) (holding that criteria expressed in the conjunctive are connected by "and"); Malone v. Gober, 10 Vet. App. 539 (1997) (construing "and" as conjunctive in a statute); cf. Johnson v. Brown, 7 Vet. App. 95, 97 (1994) (holding that "or" in the rating criteria shows that each is an independent basis for granting that rating). Here, the Veteran is in receipt of a disability rating of 20 percent for diabetes mellitus prior to March 7, 2019 and 40 percent thereafter. He asserts that higher ratings are warranted. On review of the evidence, both lay and medical, the Board finds that the manifestations of the Veteran's diabetes mellitus more nearly approximate the criteria for: (1) a 20 percent rating under the former and revised versions of DC 7913 prior to March 7, 2019; and (2) a 40 percent rating under the former and revised versions of DC 7913 beginning March 7, 2019. Prior to March 7, 2019, the Veteran's diabetes mellitus required an oral hypoglycemic agent, insulin, and a restricted diet. See VA treatment records dated January 2013 to December 2018; February 2013 VA diabetes mellitus examination report; March 2013 Notice of Disagreement. However, there is no evidence that his diabetes mellitus required regulation of activities, so as to warrant a higher rating of 40 percent under either the former or revised versions of DC 7913. Indeed, in March 2013 and July 2015 VA ophthalmology procedure notes, providers noted that the Veteran's current diabetes therapy included "stay[ing] active for exercise" and "walking, and daily activities for exercise." Furthermore, multiple VA providers counseled the Veteran on the importance of regular exercise for health promotion. See VA treatment records dated March 2013 to April 2018. In light of the conjunctive "and" in the criteria for a 40 percent disability rating under both former and revised versions of DC 7913, all criteria must be met to establish entitlement to a 40 percent rating. Here, one of the required criteria for a 40 percent rating (under both the former and revised rating criteria) is not met. Therefore, a rating in excess of 20 percent for diabetes mellitus prior to March 7, 2019 is not warranted. Beginning March 7, 2019, the Veteran's diabetes mellitus has required an oral hypoglycemic agent, insulin, a restricted diet, and regulation of activities. See March 2019 VA diabetes mellitus examination report; April 2019 VA addendum opinion. However, there is no evidence of 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, so as to warrant a higher rating of 60 percent under either the former or revised versions of DC 7913. See March 2019 VA diabetes mellitus examination report. The Board acknowledges that the Veteran has a complication of diabetes mellitus (erectile dysfunction) that would not be compensable if separately evaluated, since there is no evidence of penile deformity with loss of erectile power, as required for a separate 20 percent rating under 38 C.F.R. § 4.115b, DC 7522. See August 2019 VA male reproductive system examination report. Nevertheless, the Veteran still does not meet all required criteria for a 60 percent rating as there is no evidence of episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. Therefore, a rating in excess of 40 percent for diabetes mellitus beginning March 7, 2019 is not warranted. The Board notes further that the Veteran is in receipt of special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ, effective March 7, 2019. For these reasons, the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for diabetes mellitus prior to March 7, 2019, and in excess of 40 percent thereafter, under either the former or revised rating criteria. The appeal is therefore denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.