Citation Nr: 21026845 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 19-26 213 DATE: May 4, 2021 ORDER Entitlement to a higher rating for diabetes mellitus type II, rated as 20 percent disabling prior to August 30, 2019 and 40 percent thereafter, is denied. FINDINGS OF FACT 1. For the appeal period prior to August 30, 2019, the Veteran's diabetes mellitus type II manifested as a restricted diet, the use of insulin and the use of oral medication without the regulation of activities or 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. 2. For the appeal period beginning on August 30, 2019, the Veteran's diabetes mellitus type II manifested as a restricted diet, the use of insulin and regulation of activities, without 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. CONCLUSION OF LAW Entitlement to an increased rating for diabetes mellitus type II, rated as 20 percent disabling prior to August 30, 2019 and 40 percent thereafter is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1965 to August 1967. This matter is on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter previously came before the Board in August 2020, whereupon it was remanded to allow for additional development, to include obtaining outstanding VA treatment records and to provide the Veteran with a VA examination for the purpose of determining the current severity of his service-connected diabetes mellitus. Updated VA treatment records have been associated with the record and a February 2021 VA examination was conducted. The Board therefore determines that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). Increased Rating 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. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A 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 entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (addressing staged ratings for increased rating claims). Each following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's diabetes mellitus, type II, is rated under the diagnostic criteria for diabetes mellitus. 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent rating is contemplated for diabetes mellitus requiring one or more daily injection(s) of insulin along with restricted diet, or; requiring an oral hypoglycemic agent along with restricted diet. A 40 percent rating is contemplated for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is contemplated 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 rated. A 100 percent rating is contemplated 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 rated. 38 C.F.R. § 4.119, Diagnostic Code 7913. The definition of "regulation of activities" in the criteria for a 100 percent rating, that is, "the avoidance of strenuous occupational and recreational activities," also applies to the "regulation of activities" criterion for a 40 or 60 percent rating under Diagnostic Code 7913. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to increased rating for diabetes mellitus type II The Veteran generally asserts that he is entitled to an increased rating for his diabetes mellitus type II, specifically because his symptoms are more severe than contemplated by the currently assigned ratings. Specific argument in support of this appeal has not been presented. The Veteran was granted service connection for diabetes mellitus type II, effective November 24, 2017. The Board will analyze the following two periods: November 24, 2017 to August 30, 2019, to determine whether the Veteran's disability picture warranted a rating in excess of 20 percent during the period; and beginning on August 30, 2019 onwards, to determine whether the Veteran's disability picture warrants a rating in excess of 40 percent from that date onward. The Board will consider all relevant evidence during these periods and address it below. Appeal period - November 24, 2017 to August 30, 2019 The Veteran was provided a VA examination in January 2018. The examination found that the Veteran required more than one injection of insulin per day. The examination also made findings that the Veteran's condition required him to adhere to a restricted diet. Additionally, the Veteran was noted to have been prescribed an oral hypoglycemic agent. The Veteran was noted to visit his diabetic care provider less than twice per month for episodes of ketoacidosis; and less than twice per month for episodes of hypoglycemia. The Veteran was also noted to have been hospitalized for ketoacidosis one time in the 12 months prior to the examination. No incidence of hospitalization was noted for hypoglycemia in the 12 months prior to the examination. However, the Veteran was not found to require regulation of activities as part of the medical management of his condition. Progressive unintentional weight loss was also not found. Additionally, VA treatment notes from throughout 2018 and 2019 document the Veteran's ongoing treatment with daily insulin injections. The notes show that the Veteran had been prescribed 20 units of insulin and 1000 mg of metformin daily at this time. Based on the evidence of record, the Board finds that a rating in excess of 20 percent prior to August 30, 2019 for diabetes mellitus type II is not warranted. In this regard, the Board notes that, to warrant a higher rating, the evidence must show diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Under Diagnostic Code 7913, the 40 percent criteria are conjunctive not disjunctive. In other words, there must be insulin dependence and restricted diet and regulation of activities to warrant a 40 percent rating. Here, the evidence of record shows that the Veteran's diabetes mellitus required the use of insulin and oral medication for the appeal period prior to August 30, 2019. The record fails to show that the Veteran's diabetes mellitus requires regulation of activities as contemplated by the Diagnostic Code as the January 2018 VA examiner found that such restriction of activities was not required. In a November 2018 VA treatment note, the Veteran had reported that he attended a yoga class at VA and that that he stayed active and attempted to exercise by walking as much as he can about three times per week. Therefore, as the evidence of record shows that the Veteran's diabetes mellitus type II has not required regulation of activities prior to August 30, 2019, the Board finds that it does not more closely approximate the rating criteria for a rating in excess of 20 percent under Diagnostic Code 7913. The record does not establish, and the Veteran has not alleged, episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, complications that would not be compensable if separately rated, at least three hospitalizations per year or weekly visits to a diabetic care provider, progressive loss of weight and strength or complications that would be compensable if separately rated. As the criteria for the next higher 40 percent rating are not met, it follows that the criteria for an even higher rating (60 or 100 percent) likewise are not met. Appeal Period Beginning on August 30, 2019 An August 30, 2019 VA treatment note from a VA doctor evaluating the Veteran for hypoglycemia indicate that the Veteran was advised to decrease his insulin dosage and continue taking metformin, a hypoglycemic agent. The Veteran was provided a VA examination in February 2021. The examination found that the Veteran required one injection of insulin per day. The examination also found that the Veteran is required to regulate his activities as part of the medical management of his diabetes mellitus. The Veteran was not noted to be on a restricted diet. The Veteran was noted to visit his diabetic care provider less than twice per month for episodes of ketoacidosis; and less than twice per month for episodes of hypoglycemia. No episodes of hospitalization for either ketoacidosis or hypoglycemia were noted. For the appeal period beginning on August 30, 2019, the record establishes that the Veteran's diabetes mellitus required the use of insulin and oral medication as well as the regulation of activities. Although the Veteran's diabetes mellitus type II requires insulin, at one injection daily, and requires regulation of his activities; it has not required any hospitalizations due to episodes of ketoacidosis or hypoglycemia. The record does not establish, and the Veteran has not alleged, episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, complications that would not be compensable if separately rated, progressive loss of weight and strength or complications that would be compensable if separately rated. Therefore, a rating in excess of 40 percent beginning on August 30, 2019 is not warranted. Other Considerations The Board notes that the Veteran is competent to make assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings involve medical findings that are within the province and purview of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, while the Board gives due consideration to the Veteran's lay assertions, it accords them probative value than the medical evidence on record. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his diabetes mellitus according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); The Board has considered whether a further staged rating under Hart v. Mansfield, supra is appropriate; however, the Board finds that the remainder of his symptomatology has been stable throughout each period on appeal. Therefore, assigning a further staged rating is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (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). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran reported being employed at the canteen in an April 2016 VA treatment note and his current employment status is unknown. Moreover, he has not alleged being unable to obtain and maintain gainful employment due to his service-connected diabetes mellitus. As such, Rice is inapplicable in this case. (Continued on the next page) In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of a higher rating for diabetes mellitus type II. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.