Citation Nr: 21027647 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-22 604 DATE: May 6, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus is denied. FINDING OF FACT The Veteran's type II diabetes mellitus requires oral medication, daily insulin, and a restricted diet. Regulation of activities has not been demonstrated. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for type II diabetes mellitus are not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran appeals a January 2014 rating decision. He contends that his service-connected diabetes mellitus warrants a rating in excess of 20 percent. The Board remanded this matter in June 2019 to obtain outstanding treatment records and for an examination. The matter has been returned to the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Diabetes Mellitus, type II The Veteran's diabetes mellitus has been assigned a 20 percent initial rating under Diagnostic Code 7913. Diagnostic Code 7913 provides a 20 percent rating for diabetes mellitus requiring a restricted diet as well as insulin or an oral hypoglycemic agent. A 40 percent rating is provided for diabetes mellitus requiring a restricted diet, insulin, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is provided for diabetes mellitus requiring a restricted diet, insulin, 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 requires more than one daily injection of insulin, a 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 evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. For a 40 percent rating, "regulation of activities" means "avoiding strenuous occupational and recreational activities." Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). The Court of Appeals for Veterans Claims (Court) held that in order for a claimant to be entitled to a 40 percent disability rating, the evidence must show that it was medically necessary for a claimant to avoid strenuous occupational and recreational activities. Medical evidence is required to establish that occupational and recreational activities have been restricted under Diagnostic Code 7913. The Court further held, "In light of the conjunctive 'and' as used in the criteria for a 40 percent disability rating under 38 C.F.R. § 4.119, DC 7913, all criteria must be met to establish entitlement to a 40 percent rating." Id. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). The Veteran has not filed claims for any other potential complications. His claim for kidney loss due to cancer related to ranitidine for acid reflux was denied in an August 2020 rating decision. We note that he was diagnosed with diabetic nephropathy at the November 2019 VA examination, but the actual medical record does not show renal dysfunction due to diabetes but rather due to kidney cancer treated with a nephrectomy in May 2018. There is no evidence of diabetic renal dysfunction or aggravation prior to the 2019 VA examination; and it does not acknowledge the kidney removal. By contrast, the record only shows medical documentation of the right nephrectomy due to discovery of a mass in May 2018. This is what precipitated the Veteran filing the claim for kidney cancer and nephrectomy due to ranitidine use in August 2020. The record reflects he had the right kidney removed in May 2018 after the discovery of a mass. The rating decision reflects the finding that the Veteran was not service-connected for acid reflux. Thus, we do not find any other potential complications to rate. Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). In the remand, the Board noted that the Veteran was last afforded a VA examination for his diabetes mellitus in November 2015. In the May 2019 Informal Hearing Presentation, the Veteran's representative noted that subsequent to the November 2015 examination, the record contains a "Physician's Statement Diabetes Mellitus" signed on May 13, 2016, where the Nurse Practitioner checked the block showing that the Veteran required regulation of activities and checked three complications (Visual, Cardiovascular and Erectile Dysfunction) and wrote in Prostate CA. A more contemporaneous examination was considered warranted. Here, we note that the Veteran has a diagnosis of history of prostate cancer with a prostatectomy in June 2013. He is service-connected for prostate cancer as well as erectile dysfunction. A December 2019 diabetes disability benefits questionnaire (DBQ) with an addendum that same month was completed by a VA physician who examined the Veteran and reviewed the record. It was noted that diabetes mellitus was diagnosed in 2005 and the record documented that the Veteran was taking Inulin in the morning and evening and metformin. Insulin was thus required with more than one injection per day. The Veteran does not require regulation of activities as part of medical management of diabetes mellitus. The Veteran visits his diabetic care provider for episodes of ketoacidosis and or episodes of hypoglycemia less than 2 times per month. There were no episodes of ketoacidosis or hypoglycemia required hospitalization over the past 12 months. He did not have progressive unintentional weight loss or loss of strength attributable to diabetes mellitus. The examiner stated that the diabetes mellitus did not impact the Veteran's ability to work. In the addendum, the examiner stated that the Veteran went to the diabetic care provider monthly for check-ups, based on history, that he requires more than one injection of insulin daily, as the history in 2013 reflects Insulin in the morning and evening, and metformin. We note that the November 2015 VA examination report was consistent with this level of treatment. No complications were listed in November 2015, whereas only the aforementioned and discounted assessment of diabetic nephropathy was noted as a complication in 2019. Thus, even though we note the 2016 Nurse Practitioner's note, we find that the two VA examinations are more probative as to the fact that there are no additional complications of diabetes mellitus. These did not find any visual or cardiovascular complications. The 20 percent evaluation contemplates a requirement for an oral hypoglycemic agent, insulin more than once per day, and restricted diet. VA examination and treatment records all reflect that the Veteran has taken oral hypoglycemic medication and has required insulin throughout the period on appeal. His diabetes can reasonably be found to require a restricted diet. However, in order to warrant a 40 percent evaluation, there must be regulation of activities. Here, there is little to no indication that the Veteran was required to regulate his activities in order to manage his diabetes at any point. Both VA examinations and ongoing treatment records show that the Veteran has not been required to regulate his activities to manage his diabetes. The Board again acknowledges nurse practitioner's 2016 note inasmuch as it indicates regulation of activities. However, we find the two VA examination reports to be more probative as they were based on a review of the entire record. Also, the Veteran's diabetes causes no occupational impairment; there is no indication that it is actually medically necessary for him to avoid strenuous occupational and recreational activities due to his diabetes. See Camacho, 21 Vet. App. at 363. Treatment records are silent regarding avoidance of strenuous activity. The VA examination reports suggest he does not have to avoid strenuous activity. There is little to no evidence that the Veteran's diabetes has actually caused the Veteran to avoid strenuous occupational and recreational activities, nor is there any indication that it is medically necessary for the Veteran to regulate his activities. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. RIPPEL 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.