Citation Nr: 21026795
Decision Date: 05/04/21	Archive Date: 05/04/21

DOCKET NO. 10-00 343
DATE: May 4, 2021

ORDER

Entitlement to an initial rating greater than 20 percent for service-connected diabetes mellitus with non-proliferative retinopathy and erectile dysfunction is denied.

FINDING OF FACT

The most probative evidence of record shows that the Veteran's service-connected diabetes mellitus required treatment with insulin or oral medication, and a restricted diet, but did not require regulation of activities during any portion of the period on appeal.

CONCLUSION OF LAW

The criteria for entitlement to an initial rating greater than 20 percent for service-connected diabetes mellitus with non-proliferative retinopathy and erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.119, Diagnostic Code (DC) 7913.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1968 to March 1970, to include service in the Republic of Vietnam. The Veteran died in June 2016. The appellant is his surviving spouse, who has been substituted for the Veteran in this appeal.

This matter was initially before the Board in January 2013, where it was remanded for further development. The Board concluded that the Veteran should be afforded a VA examination to determine the current severity of his diabetes. The matter returned to the Board in May 2016 and was again remanded, as the examiner did not comply with the Board's directives. The matter returned to the Board in December 2020 and was remanded for a third time, due to noncompliance with the Board's directives. The Board now finds that there has been substantial compliance with prior remand directives and the matter is properly returned to the Board for adjudication.

Entitlement to an initial rating greater than 20 percent for service-connected diabetes mellitus with non-proliferative retinopathy and erectile dysfunction.

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The appellant appeals the denial of a rating higher than 20 percent disabling for diabetes mellitus type II. Under DC 7913, a 10 percent evaluation is warranted when diabetes mellitus, type II, is manageable by restricted diet only. 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 warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted 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 warranted 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. 38 C.F.R. § 4.119, Diagnostic Code 7913.

The criteria for a rating in excess of 20 percent for diabetes mellitus necessitate a requirement of "regulation of activities." "Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in Diagnostic Code 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007).

Thus, in order to warrant an increased disability rating in excess of 20 percent for diabetes mellitus, the evidence must show that the Veteran's diabetes mellitus requires insulin, a restricted diet, and regulation of activities.

Turning to the relevant evidence of record, VA obtained a retrospective opinion in June 2020. The examination disclosed a diagnosis of diabetes mellitus and his treatment required a "restricted diet and insulin with more than 1 injection a day." However, there was no activity restriction for his diabetes. The examiner concluded that his complaints are due to his other comorbidities, such as a back condition, obstructive sleep apnea, hemochromatosis, etc.

VA obtained another retrospective opinion in February 2021. The examiner opined that there were "no real changes in the Veteran's diabetic condition throughout [the] period [of] 2005 to 2016." The examiner noted that while an August 2007 medical record discussed modified work activities, the Veteran was also encouraged to exercise to control blood sugar. The examiner concluded that the only complications related to his diabetes were his retinopathy and peripheral neuropathy which was mild in severity. Lastly, the examiner stated that the "only significant changes during the specified period was his diagnosis of hemochromatosis requiring bimonthly phlebotomy that was found to be genetic and not related or aggravated by [diabetes mellitus] and led to his death."

Upon review of the evidence of record, the Board finds that the criteria for an evaluation higher than 20 percent disabling for diabetes mellitus have not been met for any period on appeal. While the appellant has presented competent and credible testimony regarding the Veteran's functional limitations, the most probative evidence is against a finding that his diabetes mellitus required regulation of activities as contemplated by the rating schedule for any period on appeal. Rather, the most probative evidence, including the VA examination reports discussed above, shows that regulation of activities was not part of medical management for the Veteran's diabetes mellitus.

VA examinations and treatment records do not indicate the Veteran's diabetes mellitus was so severe or difficult to control, that he was prescribed to avoid strenuous occupational and recreational activities. In fact, according to his medical records, the Veteran was encouraged to exercise. See June 2015, November 2015, and December 2015 VA Treatment Records. Additionally, the medical evidence of record is silent for episodes of ketoacidosis or hypoglycemic reactions less than twice a month requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider.

The Board notes that the Veteran suffered from complications from diabetes mellitus shown by the record, specifically, his peripheral neuropathy. However, the Veteran was already service-connected for peripheral neuropathy associated with diabetes of the left lower extremity, left upper extremity, and right upper extremity. He has been assigned separate ratings for each extremity, and these matters are not in appellate status before the Board. See April 2015 Rating Decision Codesheet.

Lastly, the Board has considered the appellant's assertions that the Veteran's service-connected diabetes mellitus warrants a higher disability rating. While the appellant is competent to report symptoms related to the Veteran's diabetes, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), she is not competent to determine the severity of the Veteran's diabetes, as such a finding requires medical expertise and training to make the appropriate determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007). Thus, the appellant's lay assertions are nonprobative evidence in the context of the claim of entitlement to an increased disability rating.

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Ultimately, the Board finds that the Veteran has been properly rated for his diabetes mellitus and there is no basis for assigning a disability rating higher than 20 percent for any period on appeal, as the probative medical evidence establishes that regulation of activities due to the diabetes mellitus has not prescribed or advised. Accordingly, the claim for a rating higher than 20 percent for diabetes mellitus, type II is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable.

 

 

D. C. JOHNSON

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Adeleke, T.

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.