Citation Nr: 21026723 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-35 842 DATE: May 3, 2021 ORDER A rating in excess of 20 percent for diabetes mellitus, type II (DMII) is denied. REMANDED Entitlement to a separate rating for peripheral neuropathy is remanded. FINDING OF FACT The Veteran's DMII requires the use of oral medication, a restricted diet, and insulin injections once per day; regulation of activities has not been shown. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1969 to June 1971. This case comes before the Board of Veterans' Appeals on appeal from an April 2014 rating decision by the Regional Office (RO), which denied entitlement to a rating in excess of 20 percent for DMII. See April 2014 Rating Decision. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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 or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Board must also 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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). 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 there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Diabetes mellitus is rated pursuant to DC 7913, which warrants the assignment of a 20 percent rating if insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, are required. A 40 percent rating is assigned if insulin, restricted diet, and regulation of activities are required. A 60 percent rating is assigned if insulin, restricted diet, and regulation of activities are required, 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. 38 C.F.R. § 4.119, DC 7913. Compensable complications of diabetes are separately evaluated unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under DC 7913. 38 C.F.R. § 4.119, DC 7913, Note (1). The definition of "regulation of activities" in the criteria for a 100 percent rating, that is, the "the avoidance of strenuous occupational and recreational activities," also applies to the "regulation of activities" criterion for a 40 or 60 percent rating under DC 7913. In addition, the criterion of "regulation of activities" requires medical evidence that occupational and recreational activities have been restricted by the diabetes. Camacho v. Nicholson, 21 Vet. App. 360, 363-65 (2011). Entitlement to a rating in excess of 20 percent for DMII. The Veteran seeks a rating in excess of 20 percent for his DMII and contends that his DMII requires the regulation of activities. See April 2015 Notice of Disagreement. VA treatment records show that the Veteran has been receiving regular treatment for his DMII during the relevant appeal period. In May 2014, it was documented that the Veteran had been prescribed insulin (once daily), glucose, Metformin, and Glipizide to treat his elevated blood sugar. Both Metformin and Glipizide are oral hypoglycemic agents. See VA Treatment Record received May 2016. More recent treatment records from March 2019 similarly show that the Veteran is prescribed insulin (once daily), Glipizide, and Metformin. See VA Treatment Record received May 2019. In addition to the medications prescribed to treat the Veteran's DMII, the Veteran's VA treatment record contains numerous instances of clinicians encouraging the Veteran to exercise and maintain a regulated diet. For example, a May 2013 treatment note indicates that the Veteran's primary care physician recommended that the Veteran maintain a low salt and sugar diet, to increase physical activity, and to lose weight. See VA Treatment Record received May 2016. A treatment note from September 2017 indicates that clinicians counseled the Veteran to maintain a low fat, low cholesterol, low salt, and low carbohydrate diet, and to exercise three times per week. See VA Treatment Record received October 2016. Most recently, in April 2019, the record reveals that clinicians stressed the importance of diet, exercise, and weight loss to the Veteran. See VA Treatment Record received May 2019. During the relevant appeal period, the Veteran also has been afforded numerous VA examinations and medical opinions to assess his DMII. Specifically, the Veteran underwent VA examinations in August 2012 and February 2014. Additionally, in August 2016, the Veteran was provided a VA medical opinion to evaluate the severity of his DMII. The VA examinations and medical opinions, at most, indicate that the Veteran's DMII is managed with a restricted diet, oral hypoglycemic agents, and insulin (one injection per day). The VA examiners found that no regulation of activities was required. During each examination, it was also indicated that the Veteran had no episodes of ketoacidosis or hypoglycemia requiring hospitalization in the past 12 months. The Veteran reported that he saw his DMII care provider less than two times per month. Additionally, the Veteran was found to have diabetic nephropathy as a complication of his DMII. There was no functional impairment associated with the Veteran's DMII condition. See August 2012 VA Examination; See February 2014 VA Examination; See June 2016 VA Medical Opinion. The Board acknowledges the Veteran's contention that he has restricted activities due to his DMII. Specifically, in his April 2015 Notice of Disagreement, it was stated, "VA states that activity is not restricted but that is untrue. Doctor states that the [V]eteran has restricted activity." It appears the Veteran is asserting that he meets the criteria for "regulation of activities" as defined by DC 7913. As indicated above, the definition of "regulation of activities" in the criteria for a 100 percent rating is, "the avoidance of strenuous occupational and recreational activities." In this regard, the Board finds no evidence that the Veteran's treatment providers have recommended that he avoid strenuous occupational and recreational activities to manage his DMII. Rather, the relevant evidence demonstrates that the Veteran's treatment only includes oral hypoglycemic agents, dietary restrictions, and insulin. Furthermore, as outlined above, the clinicians have repeatedly encouraged the Veteran to engage in additional exercise, rather than to restrict his activities. Given the above evidence, the Board finds that the weight of the medical evidence does not support a finding that the Veteran's diabetes requires regulation of activities. Instead, the relevant evidence demonstrates that the Veteran's treatment only includes oral hypoglycemic agents, insulin (once daily), and dietary restrictions. The record contains numerous instances where the Veteran was instructed to exercise as part of his diabetes treatment. Accordingly, the Board finds that the evidence does not show that occupational and recreational activities were regulated during the appeal period. As such, there is no basis upon which a rating in excess of 20 percent is warranted. Finally, in reaching the above conclusion, the Board recognizes that compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent disability evaluation. In this case, the Veteran has asserted that he has peripheral neuropathy as a result of his service-connected DMII; therefore, that matter is addressed in the remand section below. As for the Veteran's diabetic nephropathy, in a February 2016 rating decision, the RO granted a separate rating for that disability and assigned a 60 percent rating, effective September 26, 2014. See February 2016 Rating Decision. The Veteran was advised of this decision and of his right to disagree with that decision. As the Veteran has not appealed the February 2016 rating decision, the matter of the rating and effective date assigned for the Veteran's diabetic nephropathy is not at issue herein. REASONS FOR REMAND Entitlement to a separate rating for diabetic neuropathy is remanded. As noted above, 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 DC 7913. 38 C.F.R. § 4.119, DC, Note(1). In a July 2020 appellate brief, the Veteran, through his representative, contended that the he has peripheral neuropathy, a complication of DMII, and, thus, should be considered as part of his claim for DMII. See July 2020 Appellate Brief. The record suggests the presence of peripheral neuropathy associated with the Veteran's DMII prior to the Veteran's August 2016 VA medical opinion. In March 2014, the Veteran submitted a statement in support of claim wherein he stated that, "my feet are starting to act up a lot more now, burning tingling, pins and needles." See March 2014 Statement in Support of Claim. A May 2014 VA treatment record reveals that the Veteran complained of numbness in his feet. See VA Treatment Record received May 2016. More recently, in July 2016, the Veteran reported to physicians that he was experiencing signs of neuropathy. See VA Treatment record received August 2016. Notably, however, the August 2016 VA medical opinion did not find peripheral neuropathy to be a complication of the Veteran's DMII. See August 2016 VA Medical Opinion. Therefore, the record remains unclear as to whether the Veteran has neurologic abnormalities, to include peripheral neuropathy, that is associated with his service-connected DMII. Additionally, the Board notes that while the Veteran has undergone VA examinations to evaluate his DMII, he has not yet been afforded a VA examination to evaluate his potential peripheral neuropathy, which may be associated with his DMII. Based on the foregoing, the Board finds that there is sufficient evidence to meet the threshold requirements for affording the Veteran a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006) (VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Accordingly, a VA examination is warranted to determine the nature and etiology of any neurological abnormalities that may be associated with the Veteran's service-connected DMII. The matter is REMANDED for the following action: Arrange for a VA examination with an appropriate VA examiner to determine the nature and etiology of any neurological abnormalities associated with the Veteran's service-connected DMII. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. (a.) The examiner should provide diagnoses for any neurological abnormalities present during the applicable appeal period. In rendering a diagnosis, the examiner should consider and discuss the May 2014 and July 2016 VA treatment records, and the Veteran's March 2014 statement in support of claim wherein he complained of symptoms such as numbness, tingling, burning, and "pins and needles" in his feet. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed neurological abnormality is a residual associated with the Veteran's DMII. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.